Petition — California v. Teresinski
Supreme Court brief1980
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oI. 8C
IN THE SUPREME COURT OF
UNITED STATES ‘Guprema Court, U. oe
FILED
JUK 18 i989
October Term, 1979
No. 79-
PEOPLE OF THE STATE OF CALIFORNEA5
jacked,
Ve
ROBERT JOSEPH TERESINSKI,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF THE
STATE OF CALIFORNIA
GEORGE DEUKMEJIAN, Attorney
General of the State of
California
ROBERT H. PHILIBOSIAN, Chief
Assistant Attorney General -
Criminal Division
ARNOLD O. OVEROYE
Assistant Attorney General
WILLARD F. JONES
Deputy Attorney General
WM. GEORGE PRAHL
Deputy Attorney General
555 Capitol Mall, Suite 350
Sacramento, California 95814
Telephone: (916) 445-0914
Attorneys for Respondent
|
TOPICAL INDEX
OPINIONS BELOW . . +26 e« «+ e
JURISDICTION ee ae ee oe
QUESTIONS PRESENTED ee ore et
CONSTITUTIONAL PROVISIONS INVOLVED
STATEMENT OF THE CASE . . .
STATEMENT OF FACTS ° . .
A. Preliminary Hearing
Transcript ° ° °
B. The Motion to Suppress
Hearing . ° ° °
SUMMARY OF ARGUMENT ° ° °
ARGUMENT:
I. UNERRING ENFORCEMENT AND
INTERPRETATION OF CALI-
FORNIA'S JUVENILE CURFEW
LAWS WOULD BE EXTREMELY
DIFFICULT FOR EVEN THE
MOST EXPERIENCED POLICE
OFFICERS . . . °
Pages
14
17
20
TOPICAL INDEX
~ (continued) Pages
II. OFFICER ROCHA HAD A SPECI-~
FIC AND ARTICULABLE FACTUAL
BASIS FOR SUSPECTING THAT
CRIMINAL ACTIVITY WAS
TAKING PLACE AND THAT THE
JUVENILES HE INTENDED TO
STOP WERE INVOLVED IN
THAT ACTIVITY a es. 42
III. EVEN ASSUMING ARGUENDO
THAT OFFICER ROCHA WAS
MISTAKEN IN HIS BELIEF
THAT THE CURFEW ORDINANCE
HAD BEEN VIOLATED, HIS
GOOD FAITH MISTAKE OF
LAW DOES NOT RENDER THE
DETENTION UNLAWFUL .- . 58
Iv. THE MAJORITY OPTION IS
CONTRARY TO PRECEDENT IN
FINDING THAT THE VICTIM'S
IN-COURT IDENTIFICATION
WAS OBTAINED BY EXPLOITA~
TION OF THF ALLEGEDLY
ILLEGAL DETENTION .- . 73
v. NO RECOGNIZED PURPOSE OF
THE EXCLUSIONARY RULE WOULD
BE SERVED BY EXCLUSION OF
THE PHYSICAL AND/OR
IIDENTIFICATION EVIDENCE . 89
CONCLUSION . . ° . . ° 112
ii.
TABLE OF AUTHORITIES CITED
Aebli v. Board of Education
(1978) 62 Cal.App.2d 706 .
Aguilar v. Texas
(1964) 378 U.S. 108 . °
Alves v. Justice Court
(1957) 148 Cal.App.2d 419
Bivens v. Six Unknown Federal
Narcotics Agents
(1971) 4N3 U.S. 388 . °
Boyd v. United States
(1886) 116 U.S. 616 . .
Brinegar v. United States
(1949) 338 U.S. 160 . °
Brown v. Illinois
(1975) 422 U.S. 612 . °
Burdeau v. McDowell
(1921) 256 U.S. 465 . °
Bykosky v. Middletown
(D.C. Pa. 1975) 401 F.Supp.
Chapman v. California
(1967) 386 U.S. 18 ° °
Coolidge v. New Hampshire
(1971) 403 U.S. 443 . °
iii.
Pages
° 48
° 59
° 31
° 91
° 60
° 67
° Passim
. 103
1242 22
. 103
. 59
TABLE OF AUTHORITIES CITED
(continued). Pages
Cooper v. California
(1967) 386 U.S. 58 ° ° ° 59
Davis v. Justice Court
(1970) 10 Cal.App.3d 1002 ° 22
Davis v. Mississippi
(1968) 394 U.S. 721 * ° ° 86
Desist v. United States
(1969) 394 U.S. 244 . ° e 91
Elder v. Board of Medical
Examiners
(1966) 241 Cal.App.2d 246 e 67
Elkins v. United States
(1960) 364 U.S. 206 . e e 91,92
Ervin v. State
(1968) 41 Wis.2d 194 . e e 22
Fogg v. Superior Court
(1971) 21 Cal.App.3d 1 ° ° 86
Frisbie v. Collins
(1952) 342 U.S. 519 . ‘ ° 102
Gerstein v. Pugh
(1975) 420 U.S. 103 . ° ° 102
Glover v. District of Columbia
(D.C. App. 1969) 250 A.2d 556. 22
Harris v. New York
(1971) 401 U.S. 222 . e ° 103
iv.
TABLE OF AUTHORITIES CITED
(continued) Pages
Hill v. California
(1971) 401 U.S. 797 . ° ° 66,100
In re Christopher S.
(1978) 80 Cal.App.3d 903 . ° 104
In re Cregler
(1961) 56 Cal.App.2d 308 . ° 46
In re Francis W. |
(1974) 42 Cal.App.3d 891 . ° Passim
In re Martinez
(1970) 1 Cal.3d 641 . ° ° 103
In re Nancy C.
(1972) 28 Cal.App.3d 755 . ° Passim
In re Tony C.
(1978) 21 Cal.3d 888 . ° ° Passim
Johnson v. United States
(1948) 333 U.S. 10 . . ° 79,101
Katz ve United States
(1967) 389 U.S. 347 . e e 61
Kaufman ve. United States
(1969) 394 U.S. 217 . e e 91
Lee v. Florida
(1968) 392 U.S. 378 e e ° 92
Linkletter v. Walker
(1965) 381 U.S. 618 . e e 91,104
Vo
TABLE OF AUTHORITIES CITED
(continued) Pages
Lockridg2 v. Superior Court
(1970) 3 Cal.3d 166 ° . ° 82
Mapp v. Ohio
(1961) 367 U.S. 643 ° 58,90,91,104
McNabb v. United States
(1943) 318 U.S. 332 ° ° e 108
Michigan v. Tucker
(1974) 417 U.S. 433 . ° 91,94,109
Olmstead v. United States
(1928) 277 U.S. 438 ° ° »- 91,106
Pendergraft v. Superior Court
(1971) 15 Cal.App.3d 237 . ° 53
People v. Bloom
(1969) 270 Cal.App. 2d 7a8.s . 53
People v. Cahan
(1955) 44 Cal.2d 434 . . ° 91
People v. Courtney
(1970) 11 Cal.App. 3d 1185 . 52-53, 62
People v. Fitzgerald
(1972) 29 Cal.App.2d 296 - ° 80
People v. Griffin
(1976) 59 Cal.App. 3d ye) a 83,84,85
People v. Hayko
(1970) 7 Cal.App.3d 604 104
vi.
TABLE OF AUTHORITIES CITED
(continued) Pages
People v. Hill
(1968) 69 Cale2d 550 . . . 66
People v. Horton
(1971) 14 Cal.App.3d 930 ° Passim
People v. Kanos
(1969) 70 Cal.3d 381 ° ° ° 17
People v. McInnis
(1972) 6 Cal.3d 822
cert. den. 409 U.S. 1061 ° ° 82
People v. Mickelson
(1963) 59 Cal.2d 448 ° ° « 50,62
People v. Rafter
(1974) 41 Cal.App.3d 537 ° ° 104
People v. Superior Court (York)
(1970) 3 Cal.App.3d 648 ° . 70
People v. Walton
(1945) 70 Cal.App.2d Supp. 862 25,26
Randle v. California State Board
of Pharmacy (1966)
249 Cal.App.2d 254 : ° ° 69
Schmerber v. California
(1966) 384 U.S. 757 ° ° ° 60
Shadwick v. City of Tampa
(1972) 407 U.S. 345 ° . : 59
Spinelli v. United States
(1969) 393 U.S. 410 ° ° ° 59
vii.
TABLE OF AUTHORITIES CITED
(continued) Pages
Terry v. Ohio
(1968) 392 U.S. l . . ‘ 55,91
United States v. Calandra
(1974) 414 U.S. 338 , ° Passim
United States v. Chalk
(4th Cir. 1971) 441 F.2d 1277 22
United States v. Crews
(1980) U.S. P S.Ct.
___L.Ed. ° P 73,74,77
United States v. Harris
(1971) 403 U.S. 573. ° : 59
United States v. Peltier
(1975) 422 U.S. 530. ° . Passim
United States v. Ventresca
(1965) 380 U.S. 102. ° ° 101
Walder v. United States
(1954) 347 U.S. 62 . e . 103
Weeks v. United States
(1914) 232 U.S. 383 . . ° 60,90
Williams v. Superior Court
(1969) 274 Cal.App.2d 709 ° 51,62
Wolfe v. Colorado
(1949) 338 U.S. 25 . ° 58,60,104
Wong Sun v. United States
(1963) 371 U.S. 471 . ° ° 103
viii.
AUTHORITIES
Pages
Amsterdainn, Perspective on the
Fourth Amendment, 58 Minn.
L.Rev. 349 (1974) ° ° ° 61
The Bill of Rights and The
Supervisory Power (1969)
69 Colum.L.Rev. 181 ° ° 108
Barrett, Exclusion of Evidence
Obtained By Illegal Searches~~
A Comment on People v- Cahan
(1955) 43 Cal.L. Rev. 565 ° 106
The Fourth Amendment Exclusionary
Rule: Past, Present, No Future
(1975) 12 Amer.Crim.L.Rev. 507 90
Judicial Integrity and Judicial
Review: An Argument for
Exranding the Scope of the
Fxclusionary Rule (1973)
20 U.C.LeA. LeReve 1129 - ° 92
Kaplan, The Limits of the
Exclusionary Rule (1974)
26 Stan.L.Rev. 1027 ° ° 94,104
Oaks Studying the Exclusionary
Rule in Search and Seizure
(1970) 37 U.Chi.L. Rev. 665 . 91
64
Prosser, Torts (4th Fd.) e
Schrock & Welch,
59 Minn.L.Rev. 265 - e ° 105,106
ix.
AUTHORITIES
(¢€ont inued) Pages
Up From Calandra: The Exclusionary
Rule as a Constitutional Require-
ment (1974) 59 Minn.L.Rev. 251 90
United States Constitution
Courth Amendment ° ° ° Passim
Witkin, Cal. Evidence
(2d Fd. 1966) § 113 ° ° 66
CODES
California Bus. & Prof. Code
§ 2141 ° ° e 67
§ 4229 ° ° ° 68,70
California Penal Code
§ 1538.5 se : . 84
Dixon Ordinance, sec. 16.2
Curfew ° ° ° 48
Merced City Code,
§ 17.21 ° ° ° 39
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
No. 79-
PEOPLE OF THE STATE OF CALIFORNIA,
Petitioner,
Vv.
ROBERT JOSEPH TERESINSKI,
Respondent.
)
)
)
)
)
)
)
)
)
)
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE STATE OF
CALIFORNIA
OPINIONS BELOW
The opinion of the California
Supreme Court affirming an order of the
Yolo County Superior Court dismissing a
charge of robbery was filed on February
11, 1980, and is reported at 26 Cal.3d
457, 162 Cal.Rptr. 44, 605 P.2d 874. The
opinion is reproduced as Appendix "A".
timely petition for rehearing was there-
after filed in the California Supreme
Court on February 26, 1980. That court
filed an order denying rehearing on
1/
March 20, 1980. ~
JURISDICTION
Petitioner asserts jurisdiction
under 28 U.S.C. § 1257(3).
QUESTIONS PRESENTED
Whether police officers can
reasonably be expected to have the legal
acumen necessary to unerringly resolve
the complex issues involved in the
interpretation and enforcement of
California's juvenile curfew ordinances.
A
1. The order of the California
Supreme Court denying the petition for
rehearing is reproduced as Appendix "B".
The judgment of the California Supreme
Court entered on March 21, 1980, is
reproduced as Appendix "C",
2.
Whether Officer Rocha has specific
and articuable facts for suspecting a
violation of Dixon's curfew ordinance by
the juveniles he intended to stop.
Even assuming arguendo that Officer
Rocha was mistaken in his belief that
curfew ordinance had been viOlated, does
his reasonable and good faith mistake of
law render the detention unconstitu-
tional.
Whether the majority opinion erred
in finding that the victim's in-court
identification was obtained by exploita-
tion of the allegedly illegal detention.
Whether suppression of the physical
and/or identification evidence in the
instant case would serve any of the
recognized purposes of the exclusionary
rule.
CONSTITUTIONAL PROVISIONS INVOLVED
The constitutional provisions in-
volved are the Fourth Amendment and
Fourteenth Amendment to the United
States Constitution.
STATEMENT OF THE CASE
Following a preliminary hearing
conducted on December 16, 1976, an in-
formation was filed in the Yolo County
Superior Court by the district attorney
on December 27, 1976. The information
charged respondent, Robert Joseph
Teresinski, and his co-defendant, Jimmy
Wayne Kimbrough, with a violation of
Penal Code section 211 (robbery)
2
(CT 1). 2/
2. "CT" refers to the Clerk's
Transcript on Appeal to the Supreme
Court of the State of California, in
Case No. Crim. 20497. If the Court so
desires, petitioner will furnish said
transcript upon request.
4.
On December 30, 1976, respondent
and his co-defendant appeared with
sepurate counsel for arraignment and
entered not guilty pleas. Their jury
trial was set for February 15, 1977. At
the arraignment respondent and his co-
defendant mace a motion to suppress
evidence which was scheduled to be heard
on January 17, 1977 (CT 108).
On December 30, 1976, respondent
and his co-defendant appeared with
separate counsel for arraignment and
entered not gufity pleas. Their jury
was set for February 15, 1977. At the
arraignment respondent and his co-
defendant made a motion to suppress
evidence which was scheduled to be heard
on January 17, 1977 (CT 108).
On January 17, 1977, an evidentiary
hearing was conducted pursuant to
De
respondent's motion to suppress evidence.
In addition re receiving the testimony of
James Ney at the Penal Code § 1538.5
hearing, the preliminary hearing
testimony of witnesses Larry Rocha and
Colin Cady was also stipulated into
evidence. After argument, the court
ordered counsel to file briefs on the
questions of whether the identification
testimony of Colin Cady should or
should not be suppressed. Counsel were
to file their briefs by January 24, 1977
(CF i124).
The people filed points and
authorities in opposition to respondent's
motion to suppress on January 24, 1977
(CT 112-115).
Respondent's points and authorities
were filed on January 28, 1977, and co-
defendant Kimbrough also filed his on
6.
January 28, 1977 (CT 116-118, 119-121).
On January 28, 1977, the court
issued an order granting respondent's
and co-defendant's motion to suppress
(CT 123-130).
On February 7, 1977, the court
dismissed the case against respondent
pursuant to Penal Code section 1385
(CT 131).
On March 18, 1977, petitioner filed
timely notice of appeal (CT 132).
Petitioner also filed a request for
additional record on appeal which was
granted on March 22, 1977 (CT 133-134;
135).
On March 7, 1978, the Court of
Appeal, Third Appellate District, re-
versed the order granting the motion to
suppress and ordered the matter remanded
to the trial court.
On April 5, 1978, respondent's
petition for rehearing was denied.
On May 4, 1978, the California
Supreme Court granted respondent's
petition for hearing.
On October 4, 1978, the matter was
orally argued in Sacramento.
STATEMENT OF FACTS
A. Preliminary Hearing Transcript
On the morning of December 3, 1976,
Mr. Colin Cady was working as a clerk in
the 7-11 Stcre at 301 Cottonwood Street
in Woodland (CT 7-8).
At approximately 12:45 a.m., three
men entered the store, looked around for
awhile, purchased three sandwiches and
left (CT 8).
About an hour later, these same
three men returned to the store. Mr.
Cady identified respondent, Robert
8.
Joseph Teresinski, and his co-defendant,
Jimmy Wayne Kimbrough, as being two of
the men who entered the store on
December 3, 1976.
Kimbrough walked toward the
beverage cooler in the back of the
store, opened it and took out a bottle
(CT 9). Kimbrough then walked toward
the front of the store and bumped into
respondent, dropping the bottle. Mr.
Cady came over to where the bottle had
broken to help pick up the glass. As
he bent over to do so, one of the men
hit him on the head. Two of the men
then carried Mr. Cady to the store's
back room and taped his hands behind
his back (CT ll).
The men then asked Cady how to
open the store's cash register (CT 13).
While he was tied up, Mr. Cady
9.
heard the sound of the cash register
opening and then heard the bell which
indicates that someone was entering or
leaving the store. After he got loose,
Mr. Cady checked the store and noticed
that the cash drawer was almost empty.
Before the robbery there had been almost
$70 in the till (CT 14).
At approximately 2:50 a.m. on the
morning of December 3, 1976, Police
Officer Larry Rocha was on duty in the
City of Dixon. Dixon is a small town in
Solano County about 15 miles from
Woodland (CT 59).
Officer Rocha noticed a maroon
Chevrolet being driven through the
commercial section of town (CT 87).
Officer Rocha stopped the car because he
thought its three occupants were all
juveniles. The City of Dixon has a
10.
10:00 p.m. curfew for juveniles.
(CT 60). /
As the car was pulling over,
Officer Rocha saw the driver reach
toward the glove compartment while
glancing back at the police car. Officer
Rocha also saw the passenger in the
front seat reach down under the seat
while looking back at the police car
(CT? 61).
Although Officer Rocha did not
think these actions were illegal they
did make him apprehensive (CT 68-69).
Off:.cer Rocha pulled up behind
respondent's car, stepped out and drew
his back-up weapon because he feared
3. Section 16.2 et seq. of the
Dixon City Ordinance is set forth in the
Slip Opinion of the California Supreme
Court attached hereto as Appendix "A" at
p. 4, n. 2.
ll.
for his own safety (CT 68).
Respondent, who was driving the
car, got out and met Officer Rocha near
the back of the car (CT 65).
Officer Rocha was familiar with
most of the vehicles on the main street
of Dixon at that hour but did not
recognize the maroon Chevrolet (CT 87).
Officer Rocha examined respondent's
driver's license and then checked the
interior of the car to see if any of the
passengers had alcohol in the car
(CT 66).
Officer Rocha saw a pool of liquid
coming out from under the driver's seat
and saw that there was a beer can on the
floor under the seat between the
passenger's legs (CT 70).
Officer Rocha then walked to the
passenger side of the car and asked the
12.
person seated in the front seat to get
out (CT 70).
As this person was getting out of
the car, Officer Rocha saw a holster on
the front seat (CT 72).
Officer Rocha again drew his gun and
asked, "Where's the gun?" (CT 72).
Respondent replied, "Under the
seat." (CT 72).
Officer Rocha instructed respondent
to reach under the seat and get the
weapon (CT 73). Officer Rocha then had
the three occupants of the car lie ~~
the sidewalk and he called for a backup
unit.
After the backup unit arrived,
Officer Rocha searched the interior of
the car and found a baggie of green
vegetable matter, a brown paper bag full
of currency, change and food stamps,
13.
and four full beer cans under the front
seat (CT 74-76).
All three of the occupants of the
vehicle were then arrested for investi-
gation of robbery (CT 77).
When the Dixon Police inventoried
the money in the bag, they found a roll
of coins with a name, address and phone
number on it (CT 82).
B. The Motion to Suppress Hearing
As previously noted, the preliminary
hearing transcript was stipulated into
evidence at the § 1538.5 hearing.
It was also stipulated that the
three suspects were transported to
Woodland after their arrest in Dixon
and that their photographs were taken in
Woodland and that these photographs were
shown to the victim by Detective James
Ney of the Woodland Police Department
14.
SL ss sn lence : gn ee a a
as part of a photographic lineup.
Detective James Ney was the only
witness called at the § 1538.5 hearing
(RT 14).
Detective Ney received a phone call
at home shortly after the robbery and
went to the 7-11 Store to investigate.
At the store, Mr. Cady gave Detective
Ney a description of the robbery
suspects (RT 15).
The Woodland Police also obtained
a description of the car used by the
robbers as being a 1969 maroon Chevrolet
(RT 22).
At approximately 3:35 a.m. on
December 3, 1976, Detective Ney was
notified by radio that the Dixon Police
had called to let them know that three
people were in custody who fit the
description of the suspects in the 7-1l
15.
robbery (RT 14-15). The car which these
suspects were driving also fit the
description of the car used by the
robbers and evidence found in the car
implicated the three suspects in the
robbery (RT 19).
Detective Ney and Sergeant Troxel
drove to Dixon later in the morning to
take custody of the three suspects. Mr.
Cady went with the officers to Dixon
(RT 20).
In Dixon, Detective Ney was told
that either Officer Focha or Mollica had
called the person in Woodland whose name
was on the coin wrapper found in
respondent's car and that this person had
said he spent the coins in the 7-11
Store in Woodland (RT 19).
After they were brought back to
Woodland, the three suspects were booked
16.
into the county jail and their photo-
graphs were taken (RT 17).
Photographs of respondent and of
Kimbrough were placed in a photographic
lineup along with six other photographs
(RT 17).
Mr. Cady identified both Teresinski
and Kimbrough from the photographic line-
up (RT 18).
SUMMARY OF ARGUMENT
In December, 1976, respondent was
arrested in Dixon, California, upon
probable cause to believe that he had
violated that municipality's juvenile
curfew ordinance, whose validity had
never been challenged. An incidental
es revealed evidence linking him
to the robbery of a convenience market
in Woodland, California. Almost four
years after the arrest, the California
17.
Supreme Court held that the stop was
unconstitutional and that its illegality
dictated suppression of the evidence and
consequently, a total dismissal of
charges against respondent. The reasons
given for the application of the
exclusionary rule were to deter police
misconduct.
We argue that no tenable purpose
could possibly be served by the
suppression of evidence in this case.
It could not deter police misconduct, the
prime purpose of the exclusionary rule,
because there was no "misconduct" under
any definition of that word. The arrest
was based upon probable cause and the
arresting officer reasonably and in
good faith relied upon his understanding
of the ordinance. The detrimental effect
upon the vigorous and uniform enforcement
18.
of the law is obvious and intolerable.
We contend, therefore, that evidence
found by police who reasonably and in
good faith rely upon their understanding |
of a statute, rule or ordinance in
making a stop, detention or arrest should
not be suppressed.
19.
ARGUMENT
I
UNERRING ENFORCEMENT AND INTER
PRETATION OF CALIFORNIA'S JUVENILE
CURFEW LAWS WOULD BE EXTREMELY
DIFFICULT FOR EVEN THE MOST
EXPERIENCED POLICE OFFICERS
At first blush, enforcement of a
juvenile curfew ordinance may seem a
simple task. As Officer Rocha has now
learned, such is not the case. To
insure the admissibility of evidence
seizeca as part of a detention based on
a suspected curfew violation, a police
officer in California must now be an
adroit legal scholar. The lesson taught
by the instant case is that he clearly
may not rely on his reasonable and good
faith belief regarding the meaning of
such ordinances.
To expect, as does the California
Supreme Court, that a police officer
20.
must be able to unerringly interpret
and apply each and every statute or
ordinance he is called upon to enforce
defies reason.
The instant case involves a munici-
pal juvenile curfew ordinance. However,
the police are not able to select the
laws they will be called upon to enforce
and the rule announced by the California
Supreme Court in the instant case re-
guires that an officer, working in the
field, be capable of making the most
detailed and sophisticated legal analysis
on pain of having evidence declared
inadmissible because he has made a
reasonable mistake of law.
As the briefing in this case
graphically illustrates, the law sur-
rounding California's juvenile curfew
ordinance is extremely complex. For
example, a municipality has a right to
21.
pass a curfew ordinance, even one embo-
dying severe restrictions, if an emer-
gency was involved. (See United States
ve. Chalk (4th Cir. 1971) 441 F.2d
1277, 1280-1283; Glover v. District
of Columbia (D.C. App. 1969) 250 A.2d
556, 560-561; Ervin v. State (1968)
210-211); Davis v. Justice Court
(1970) 10 Cal.App.3d 1002, 1007-1011
(89 Cal.Rptr. 409].)
It is also a well established rule
that municipalities have the power to
pass a curfew law for the purpose of
protecting juveniles or preventing
delinquency (Bykosky v. Middletown
(D.C.Pa. 1975) 401 F.Supp. 1242.)
In analyzing the difference between
the various types of curfew laws, a
California appellate court has noted
that:
22e
"Curfew statutes can be classified
into two groups according to the con-
duct proscribed, i.e., ‘presence’ or
‘loitering.’ (Curfew Ordinances
and the Control of Nocturnal Juvenile
Crime, supra, 107 U.Pa.L.Rev. 66,
73.) Those proscribing ‘presence’ or
‘being in' particular places have
been held unconstitutional. (Alves
v. Justice Court, supra, 148
Cal.App.2d 419; Ex parte McCarver
(1898) 39 Tex.Crim. 448 [46 S.W.
936).) Those interpreted as only
proscribing ‘loitering’ or ‘remaining’
have been held constitutional.
(Thistlewood v. Ocean City,
Supra, 236 Md. 548 [204 A.2d 688];
Portland v. Goodwin (1949)
187 Ore 409 [210 P.2d 577] (applying
to all persons); People v. Walton
(1945) 70 Cal.App.2d Supp. 862 [161
23.
P.2d 498].) Even those ordinances
proscribing ‘presence’ may be reason-
able if sufficient exceptions are
included making it clear that mere
‘presence’ alone is not proscribed.
(City of Eastlake v. Ruggiero,
supra, 7 Ohio App.2d 212 [36 Ohio
Ops. 345, 220 N.E.2d 126].)
"The rationale of those cases hold-
ing that ordinances proscribing
‘presence’ are unconstitutional is
that they are unnecessarily broad.
As the court noted in Alves v.
Justice Court, supra, 148 Cal.App.
2d 419, 424-425: ‘True, the ordinance
would preclude aimless loitering by
minors in public places during the
hours set forth, but it would als
make unlawful many other activities
by minors which otherwise would be
24.
entirely lawful.'
"By contrast, the ordinance in
People v. Walton, supra, 70 Cal.
App.2d Supp. 862, 864, proscribed
remaining or loitering. The court
noted at page 866: ‘Such a provision
is aimed then at preventing such
minors from tarrying and staying
unnecessarily upon the streets and
public places, and does not restrict
those minors who are uSing Or are on
such streets or places while actually
in the process of going to or from
places of business or amusement or
otherwise.'" (In re Nancy C.
(1972) 28 Cal.App.3d 755-756.)
California's juvenile curfew laws
have been the subject of judicial deci-
sions dating as far back as 1945.
(People v. Walton (1945) 70 Cal.App. 2d
256
Supp. 862.)
California's juvenile curfew laws
were again the focus of an appellate
court decision in 1971. Thus, in People
v. Horton (1971) 14 Cal.App.3d 930,
the court considered the question of
whether an officer had probable cause
to make a temporary detention under a
municipal juvenile curfew ordinance.
Horton dealt with the detention of a
car containing an adult driver and two
juveniles at about 1:15 a.m. in the City
of Modesto. Modesto had an ordinance
prohibiting juveniles from loitering
upon the city streets after the hour
of 11:00 p.m.4” Although the officers
4. Section 4-7, p. 201 of the
Modesto Municipal Code as discussed in
People v. Horton, supra, provides:
"it shall be unlawful for any minor
under the age of 18 years to loiter on
a public street or in or about (cont'd.)
26.
said they stopped the car in Horton
because they believed that there was a
curfew violation, the Court of Appeal
apparently did not feel that the officers
had a subjective belief that the statute
was being violated. (See In re
Francis W. (1974) 42 Cal.App.3d 892,
901).
In Horton, supra, the only reason
given for stopping the car was that the
officer suspected that defendant was not
Old enough to be either a parent or
guardian of his passengers and that he
was, thus, aiding and abetting them to
loiter in violation of a municipal
Footnote 4 continued.
any public place in the City between
the hours of 11 o'clock P.M. and 5
o'clock A.M. .. . unless accompanied
by a parent, guardian, or other adult
person having legal control. ... "
27.
ordinance. However, the only evidence
that indicated loitering was the actual
driving of a car in the streets of
Modesto at 1:15 asm. The court in
Horton disapproved of the detention
noting that "driving along city streets,
even at 1:15 in the morning, is not
‘loitering.'" (Id. at 933.) Later
in the opinion, it was stated that the
detention of a vehicle simply because it
contained three young people cannot be
condoned because to do so would be to
create a “second-class citizenry."
(Id. at 934.)
In 1972 the California Court of
Appeal, Third Appellate District, decided
a case involving Sacrainento's juvenile
curfew law.
In In re Nancy C. (1972) 28
Cal.App.3d 747, two Sacramento police
28.
officers observed a female who appeared
to be a minor walking east on S Street
between 3rd and 4th Streets at 10:90
pem., On June 19, 1971. The area bounded
by 3rd and 5th, and S and T Streets was
a high prostitution area. One of the
officers suspected the juvenile of being
a prostitute and described her walk as
"a prostitute stroll." The officers
drove around the block, and stopped in
the vicinity of 5th and R Streets at
approximately 10:10 p.m. and questioned
the minor. They ascertained that her
name was Nancy C. and that she was in
fact under age. She indicated to the
officers that she was coming from the
River Club (which does not permit per-
sons under 21), and that she had been
staying with one Kathy Pittman, who was
known to one officer as a prostitute.
29.
Finally, she said that she was on her
way to the Greyhound Bus Depot to meet a
friend.
The minor was arrested for violation
of curfew ordinance?’ and was booked at
city jail. During the booking her purse
was searched and a bag appearing to con-
tain marijuana was discovered. At trial
it was stipulated that the bag did con-
tain marijuana.
On appeal, the juvenile argued that
the ordinance violated article I, sec-
tion l, of the California Constitution
and the Fourteenth Amendment of the
United States Constitution in that it
5. The Sacramento juvenile curfew
ordinance which was upheld against con-
stitutional attack in In re Nancy C.,
supra, is amazingly similar to the
Dixon ordinance. The Sacramento ordi-
nance is set forth at page 752 of the
opinion in Nancy C.
30.
unreasonably interfered with the exer-
cize of personal riahts guaranteed by
these provisions by being too broad and
discriminatory.
In rejecting these arguments, the
court specifically held that: ;
"It is well settled, however, that
juveniles may be reasonably classified
differently from adults since ‘(T]he
law has long recognized the validity
of classifications based upon age.'
(Ames v. City of Hermosa Beach,
16 Cal.App.3d 146, 153 [93 Cal.Rptr.
7869.) Moreover it has been speci-
fically held that curfew regulations
of minors is one such reasonable
classification. (See People v.
Walton, supra, 70 Cal.App.2d
Supp. 862.)" (28 Cal.App.3d at 757.)
Relying on Alves v. Justice
31.
Court (1957) 148 Cal.App.2d 419,
423-424, the court in Nancy C., supra,
held that:
"The constitutional standard to be
applied when an ordinance such as
this is attacked as unduly restric-
tive of personal rights is one of
‘unreasonableness.'" (28 Cal.App.3d
at 754.)
In applying this reasonableness
test, the court balanced the gravity of
the evil to be corrected with the impor-
tance of the right invaded.
With respect to the importance of
the right being invaded by a juvenile
curfew law, the court noted that:
"Commentators have suggested that
‘the interest of children in being
abroad during the night hours is not
nearly so important to the social,
32.
~~
economic and healthful well-being
of the community,' as the free move-
ment of adults. (Curfew Ordinances
and the Control of Nocturnal juvenile
Crime, supra, 107 U.Pa.L-Rev. 66,
99.) In addition, the community has
a special interest in ‘the protection
of children of immature years.'
(In re Weber (1906) 149 Cal. 392,
395 [86 P. 809].) Furthermore, the
community has an interest in the
reduction of juvenile nocturnal
crime. Thus, ‘curfew ordinances for
minors are justified as necessary
police regulations to control the
presence of juveniles in public
places at nighttime with the atten-
dant risk of mischief, and. . .
such ordinances promote the safety
and good order of the community by
33.
reducing the incidence of juvenile
criminal activity.' (City of
Eastlake v. Ruggiero (1966)
7 Ohio App.2d 212 [36 Ohio Ops.2d
345, 220 N.E.2d 126 at p. 128).)'
(28 Cal.App.3d at 754.)
The court in Nancy C. went on to
determine whether the operative language
of the Sacramento Ordinance was so
broad as to be unreasonable when
measured against these interests.
In doing so the court considered
the meaning of the words "wander, stroll,
idle and/or play" and said:
"Although the word ‘loitering' as
used in a criminal statute has been
held to connote a sinister or wrong-
ful purpose (In re Cregler, 56
Cal.2d 308 [14 Cal.Rptr. 289, 363
P.2d 305); People v. Caylor,
34.
6 Cal.App.3d 51 [85 Cal.Rptr. 497) )
it is obvious that the words ‘loiter,
wander and idle’ are not used in the
Sacramento Curfew Ordinance in this
restrictive, sinister sense. This is
clear because the conduct described
by these words used in their sinister
sense is already proscribed by Penal
Code section 647, subdivision (e).
Furthermore, the words ‘stroll or
play' do not have any sinister conno-
tations, and their juxtaposition to
the words ‘loiter, idle, wander'
clearly connotes an innocent purpose."
(28 Cal.App.3d at p. 755.)
Fven though the use of these terms
in their broad everyday meaning might
be unreasonable if applied to all
persons, the court in Nancy C. never-
theless held that the Sacramento
35.
Ordinance was valid because it was a
loitering statute directed solely at
minors.
Based on this extensive and authora-
tive analysis, the court considered the
following factors in arriving at its
decision:
1. The Sacramento Ordinance al-
though admittedly somewhat broader than
the one in Walton, supra, is still
a loitering type ordinance rather than
a "presence" type ordinance because the
words taken together and used in their
ordinary sense prohibit tarrying and
remaining in place and not merely being
present;
2. The ordinance in question is
not applicable to all persons but only
to minors under 18 years of age;
3. The ordinance in question has
36.
reasonable and comprehensible excep-
tions.
These factors led the court in
In re Nancy C. to the inescapable con-
clusion that:
" . . the ordinance is constitu-
tional. The evil to be prevented is
danger to children and the incidence
of juvenile crime during the night-
time hours. To forbid juveniles
from loitering in the streets during
nighttime hours has a real and sub-
stantial relationship to the dual
goal of protection of children and
the community, and the ordinance in
question does not unduly restrict the
rights of minors in view of these
interests." (28 Cal.App.3d at
p. 758.)
In 1974 another case involving a
37.
juvenile curfew law was decided,
In re Francis W. (1974) 42 Cal.App.3d
832.
Like Horton, In re Francis W.
dealt with the late night stop of a car
based on a suspected violation of a
municipality's curfew law.
However, the same court which had
earlier decided Horton distinguished
that case from the facts in In re
Francis W. and found the stop in
Francis W. to be lawful.
The court in In re Francis W.
held the facts of that case to be dis-
tinguishable from those presented in
Horton because:
"The Merced municipal ordinance in
the case at bench is broad enough to
prohibit the minors from appearing
‘on any street, square or public
38.
place’ at night, whether in a car or
not; thus the officer's suspicion of
Criminal activity by the occupants of
the vehicle, that is, violating the
ordinance, was reasonable. Further,
as distinguished from Horton the
officer here had the subjective be-
lief that the ordinance was being
violated and believed that all three
of the occupants were under 18 and
in violation of the ordinance.©/
An examination of cases such as
6. In In re Francis W., Supra,
the court noted that section 17.21 of
the Merced City Code provided in per-
tinent part that: "It shall be unlawful
for any minor under the age of eighteen
years to be or appear on any street,
square or public place in the city be-
tween the hours of 10:00 P.M. of any
day and 6:00 A.M. of the following
morning . « « (Ord. No. 347, § l}3
Ord. No. 784, § 1.)" 42 Cal.App.3d
at 900-901.
39.
Nancy C., llorton and Francis W.
clearly demonstrates that it is unrea-
sonable to expect a police officer to be
able to unerringly resolve the sophisti-
cated legal questions involved in the
interpretation and/or enforcement of
juvenile curfew statutes.
In reply, it may well be argued
that rather than expecting officers to
possess the legal acumen necessary to
resolve such questions, the officers are
only expected to seek advice from their
legal advisors such as the district
attorney, city attorney or county
counsel. This reply is based on a
faulty premise. Thus, such an argument
assumes that the officer is aware of his
own deficiencies and recognizes the
legal issues upon which he needs addi-
tional education. Furthermore, the
40.
spontaneous demands of law enforcement
do not always permit the luxury of con-
sultation and academic discourse on legal
questions arising during the performance
of an officer's duties.
41.
II
OFFICER ROCHA HAD A SPECIFIC
AND ARTICULABLE FACTUAL BASIS
FOR SUSPECTING THAT CRIMINAL
ACTIVITY WAS TAKING PLACE AND
THAT THE JUVENILES HE INTENDED
TO STOP WERE INVOLVED IN THAT
ACTIVITY
The majority opinion in the instant
case incorrectly states that petitioner
concedes that respondent's conduct did
not violate the Dixon City curfew ordi-
nance (Slip Opn. p. 5.)
In briefs filed in the Court of
Appeal and in the California Supreme
Court, petitioner consistently argued
that Officer Rocha had probable cause
to believe that the Dixon Ordinance was
being violated when he stopped respon-
7/
dent's car.—
7. As counsel for petitioner indi-
cated at oral argument, the question of
whether respondent had actually (cont'd.)
42.
Similarly, at oral argument before
the California Supreme Court, petition-
er'a counsel once again advanced this
contention while being questioned by
Mr. Justice Tobriner. As will be shown,
a claim that petitioner concedes that
Officer Rocha did not have probable
cause to temporarily detain respondent's
car seriously misstates petitioner's
arguments.
A. The Najority Opinion Incor-
rectly States That The Plain
Language Of The Dixon Curfew
Ordinance Does Not Prohibit
A Minor Fron Spmply Being
Present On The Streets Of
Dixon After 10 P.M.
It is immediately apparent that
Footnote 7 continued,
violated the curfew ordinance is not
presented by this case since respondent
was not arrested on this charge nor was
he ever charged with a curfew violation.
43.
the majority opinion misreads and mis-
interprets the Dixon City ordinance
under which respondent was stopped.
Throughout his testimony in the
trial court, Officer Rocha referred only
to the curfew law of his city. It was
not until argument by respondent's
codefendant's counsel that the word
"loiter" first appeared, and then it
appeared only as a quotation from
People v. Horton, supra, 14 Cal.
App.3d 930. However, in reaching his
decision on the suppression motion, the
trial judge focused on the word
"loiter":
"Considering the foregoing facts,
the court reaches the following
conclusion:
"1. The vehicle was illegally
stopped by the Dixon police officer.
44.
The Pixon police officer mistakingly
[sic] believed that the curfew ordi-
nance prohibited juveniles from being
out during certain hours. Actually,
the ordinance only prohibited ‘loiter-
ing' during such times. It is at
once apparent that the subject
individuals, even if juveniles,
could not have been loitering by
being occupants of a moving vehicle.
The Nixon officer therefore impro-
perly stopped this vehicle under the
mistaken belief that there was a
possible violation of the juvenile
curfew ordinance; such was not
possible under the circumstances
(see People v. Horton, 14 Cal.
App.3d 930.)" (CT 126-127).
The full text of the Dixon
45.
Ordinance is given in the margin of the
majority opinion (Slip. Opn., p. 4, n.2),
and shows that its operative words in-
clude "loiter," “idle," "wander,"
"stroll," and "play." While "loiter"
has been given a legal definition in
California that connotes sinister activity
In re Cregler (1961) 56 Cal.App.2d 308,
312), it has already been shown that
the other four terms have no special
legal overtones and are not used in this
restrictive, sinister sense. Looking
to a traditional authority, the Merriam-
Webster Third New International Diction-
ary, two of the words have meanings
that do not restrict their application
to pedestrian traffic:
idle -to lose or spend time in
idleness, especially to
move idly
46.
-to spend (as time) in
idleness
wander -to move about without
a fixed course, aim, or
goal (wander about the
world)
-to go idly about for
pleasure or relaxation
-to travel, especially
slowly by a devious or
indirect route
-to take a slow winding
course.
The Dixon ordinance clearly ex-
presses the intent of the legislative
branch of the city to cover all activi-
ties of juveniles during the specified
hours. The words "in or upon" imply
more than foot traffic. Any ambiguity
is clarified by referring to the section
47.
heading of the Dixon ordinance. "Sec.
16.2 Curfew--Minors not to be in public
after 10:00 p.m.; exceptions." This por-
tion of the ordinance clearly leaves no
doubt that this ordinance is akin to
that of In re Francis W. (1974)
42 Cal.App.3d 892, fn. 3, 900-901, in
covering juvenile vehicular as well as
juvenile pedestrian traffic.
"In the construction of statutes
where there is doubt or ambiguity,
it is settled law in this state that
resort may be had to the title and
section headings. 23 Cal.Jur. sec.
145, pe. 770; sec. 147, pp. 772-773.
They are not conclusive by any means,
but are legitimate aids in arriving
at the legislative intent... "
(Aebli v. Board of Education
(1978) 62 Cal.App.2d 706, 738.)
48.
The majority's error in believine
that the Dixon ordinance covered only
loitering led the Court to mistakenly
apply the rule of People v. Horton,
supra, 14 Cal.App.3d 930, rather than
the rule of Francis W. This error in
turn led the court to conclude that as
a matter of constitutional law, the
detention was unlawful. Since all
juveniles are covered by the Dixon cur-
few ordinance, Officer Rocha was not
mistaken as to the law. It follows that
his stop of respondent's vehicle, based
on the officer's good faith belief that
a misdemeanor was being committed in
his presence, was legal. The trial
judge and the California Supreme Court
erred in holding otherwise.
49.
B. Officer Rocha Had Probable
Cause To Believe That Respondent
Was Violating The Dixon Curfew
Ordinance.
In People v. Mickelson (1963)
59 Cal.2d 448, 450, the California
Supreme Court clearly established the
rule that under the Fourth Amendment
circumstances short of probable cause
to arrest may still justify an officer's
stopping pedestrians or motorists on
the street for questioning. The right
of an officer to detain a suspect has
been measured under the following tests:
(1) the circumstances are such as to
indicate to a reasonable man that deten-
tion is necessary to the proper dis-
charge of an officer's duties; (2) the
officer can point to specific and
articulated facts which taken together
with rational inferences warrant a
detention; and (3) a hunch or suspicion
50.
is inadequate unless there is some sug-
gestion that it is related to ciminality.
In Williams v. Superior Court
(1969) 274 Cal.App.2d 709, 711-712, the
court summarized the applicable rule as
follows:
"Thus, although circumstances short
of probable cause to arrest may
justify an officer's act in stopping
and temporarily detaining a motorist
or pedestrian for questioning, there
must be some suspicious or unusual
circumstance to justify even this
limited invasion of a citizen's
privacy. Generally, the test is
whether the circumstances are such
as to indicate to a reasonable man
in a like position that such a
course is necessary to the proper
discharge of the officer's duties."
Sl.
In explaining this rule, the court
in People v. Courtney (1970) 11 Cal.
App.3d 1185, 1189-1190, said that:
"The rationale of all these deci-
sions is that an officer of the law,
employed to maintain the peace and
to prevent crime, as well as to
apprehend criminals after the fact,
has both the right and the duty to
make reasonable investigation of all
suspicious activities even though
the nature thereof may fall short of
grounds sufficient to justify an
arrest or a search of the persons
or the effects of the suspects.
Experienced police officers naturally
develop an ability to perceive the
unusual and suspicious which is of
enormous value in the difficult task
of protecting the security and safety
52.
of law-abiding citizens. The benefit
thereof should not be lost because
the cold record before a reviewing
court does not contain all the parti-
cularized perceptions which may have
been so meaningful at the scene."
It has also been held permissible
to stop minors to inquire of their ages
when no adult is present. (Pendergraft
v. Superior Court (1971) 15 Cal.App.3d
237; People v. Bloom (1969) 270
Cal.App.2d 731, 735.)
These rules were reiterated in
In re Tony C. (1978) 21 Cal.3d 888,
893, where the California Supreme Court
held that under the Fourth Amendment:
", . « to justify an investigative
stop or detention the circumstances
known or apparent to the officer must
include specific and articulable
53.
facts causing him to suspect that
(1) some activity relating to crime
has taken place or is occurring or
about to occur, and (2) the person
he intends to stop or detain is
involved in that activity. Not only
must he subjectively entertain such
a suspicion, but it must be objec-
tively reasonable for him to do so:
the facts must be such as would
cause any reasonable police officer
in a like position, drawing when
appropriate on his training and
experience [citation omitted], to
suspect the same criminal activity
and the same involvement by the
person in question."
Petitioner does not contest the
majority's statement of the constitu-
tional standard to be applied to the
54.
instant case to determine whether
Officer Rocha's temporary detention was
lawful. (Terry v. Ohio (1968)
392 U.S. 1, 223; In re Tony C., supra,
21 CA1.3d 888.)
Where petitioner parts company with
the majority and where the majority
parts company with Fourth Amendment
precedent is in the application of the
facts to the rules governing temporary
detentions.
In the instant case, the facts
clearly indicate that Officer Rocha had
probable cause to make the stop.
Thus, at approximately 2:00 a.m. in
the morning, Police Officer Larry Rocha
was on duty in the City of Dixon. Dixon
is a small town in Solano County about
15 miles from Woodland (CT 59).
Officer Rocha noticed a maroon
55.
a
Chevrolet being driven through the
town's small, closed commercial district
(CT 87).
Officer Rocha was familiar with
wost of the vehicles on the main street
of Dixon at that hour but did not recog-
nize the maroon Chevrolet (CT 87).
Officer Rocha stopped the car because
he thought its three occupants were all
juveniles. CDased upon this belief that
it was probable that a curfew violation
had occurred, the officer stopped the
vehicle. Under the principles noted
above, it is submitted that this deten-
tion was a lawful and appropriate dis-
charge of the officer's duties.
This does not end the analysis,
however. As will be shown in the next
section, petitioner asserts that even
if Officer Rocha was mistaken in his
56.
belief that’the local ordinance had
been violated, his initial detention and
subsequent search of respondent's car
did not violate the Fourth Amendment
since Officer Rocha made a good faith
and reasonable mistake of law.
57.
II!
EVEN ASSUMING ARGUENDO THAT
OFFICER ROCHA WAS MISTAKEN IN
HIS BELIEF THAT THE CURFEW
ORDINANCE HAD BEEN VIOLATED,
HIS GOOD FAITH MISTAKE OF LAW
DOES NOT RENDER THE DETENTION
UNLAWFUL
The Fourth Amendment, made appli-
cable to the States by force of the Due
Process Clause of the Fourteenth Amend-
ment (Mapp v. Ohio (1961) 367 U.S.
643; Wolfe v. Colorado (1949) 338
U.S. 25, provides:
"The right of the people to be
secure in their persons, houses,
papers, and effects, against unrea-
sonable searches and seizures shall
not be violated, and no warrants
shall issue, but upon probable cause,
supported by oath or affirmation,
and particularly describing the place
to be searched and the persons or
58.
things to be seized."
The plain language of that amendment
is aimed at and is intended to guide
executive officers who conduct searches
and seizures in the course of "the often
competitive enterprises of ferreting out
crime" (Johnson v. United States
(1948) 333 U.S. 10, 14), and neutral and
detached judicial officers (Shadwick
v. City of Tampa (1972) 407 U.S. 345;
Coolidge v. New Hampshire (1971)
warrants only upon a showing of probable
cause. (United States v. Harris
(1971) 403 U.S. 573; Spinelli v.
United States (1969) 393 U.S. 410;
Aguilar v. Texas (1964) 378 U.S.
108.)
The Fourth Amendment was adcpted
in response to the Colonial experience
59.
with arbitrary and unjustified searches
pursuant to warrants issued without
probable cause. (See Weeks v. United
States (1914) 232 U.S. 383, 389-391;
Boyd v. United States (1886) 116
U.S. 616, 624-630.) For that reason,
the “overriding function of the Fourth
Amendment is to protect personal privacy
and dignity against unwarranted intru-
sion by the State." (Schmerber v.
California (1966) 384 U.S. 757, 767.)
"The security of one's privacy against
arbitrary intrusion by the police" "is
at the core of the Fourth Amendment"
and "basic to a free society." (Wolfe
v. Colorado, supra, 338 U.S. at 27
(emphasis added). Simply put, "[w]Jher-
ever a man may be, he is entitled to
know that he will remain free from un-
reasonable searches and seizures."
60.
(Katz v. United States (1967) 389
U.S. 347, 359.) One respected commenta-
tor has postulated that "the regulation
of police behavior is what the Fourth
Amendment is all about." (Amsterdam,
Perspective on the Fourth Amendment,
58 Minn. L.Rev. 348, 369 (1974).)
We submit that both the language and
purpose of the Fourth Amendment lead
inevitably to the conclusion that it
cannot be violated where an officer
makes a temporary detention based on a
reasonable and good faith mistake of
law.
The first essential of probable
cause for arrest is the police officer's
subjective belief that a criminal
offense is being committed in his
presence.
The next consideration is whether
6l.
the facts available to the officer at
the moment of the arrest would “warrant
a man of ‘reasonable caution’ in conclud-
ing that an offense has been committed."
(Ibid.) However, it has already been
shown that circumstances short of
probable cause to arrest may still
justify an officer's detention of pedes-
trians or motorists in public areas for
inquiry and further investigation.
(People v. Mickelson, supra, 59 Cal.
2d 448; People v. Courtney, supra,
11 Cal.App.3d 1185; Williams v.
Superior Court, supra, 274 Cal.App.
2d 709.)
Application of the foregoing prin-
ciples relating to constitutionally
permissible detentions makes it imme-
diately apparent that a correct assess-
ment of the effects, if any, of Officer
62.
Rocha's mistaken interpretation of
Dixon's curfew statute is that respon-
dent's Fourth Amendment rights were not
violated. Once the officer's subjective
belief can be established, the ensuing
inguiry is not whether, in the abstract
the officer correctly interpreted the
curfew statute, but whether a reasonable
person, in the officer's position at the
time and place in question, would have
had a good belief that the curfew ordi-
nance was being violated.
Two cases which have interpreted
curfew statutes, and more specifically
the word "loiter"-contained therein, in
the constitutional context (In re
Cregler, supra, and In re Hoffman,
supra) have found it constitutionally
deficient unless interpreted so as
to involve "sinister or wrongful"
63.
connotations; they were concerned with
substantive law, not with probable
cause in the search and seizure context.
The California Supreme Court in its
appellate aerie and at its academic
leisure, has no difficulty in concluding
that the Dixon curfew law literally does
not forbid the presence of minors in a
moving vehicle at 2 a.m. But it does
not follow that a Dixon police officer
in the position of Rocha comes to the
same conclusion. Ile is neither a judge
nor a lawyer.2/ While lawyers and
judges have little or no difficulty in
politely and endlessly arguing in the
8. "[Courts have reasoned] that
the mentality of the average policemen,
whose life is traditionally not a happy
one, should not be charged with the
decisions of questions which baffle the
best lawyers in the land." (Prosser,
Torts (4th Ed.) p. 128.)
64.
courtroom whether a local curfew law
literally forhids the presence of minors
in a moving vehicle at 3:00 a.m.,
Officer Rocha is not afforded this
luxury.
Nor is he necessarily enough of a
scholar to readily comprehend that "to
loiter, idle, wander, stroll, play in
Or upon a public street” excludes such
activity when performed by the occupants
of a motor vehicle. His forte is and
should be law enforcement, not academia.
Therefore, it was error for the
California Supreme Court to judicially
interpret the curfew statute and there-
after to conclude ipse dixit that Rocha
lacked probable cause to detain simply
because of his different interpretation;
the court failed to determine the
reasonableness vel non of Rocha's
65.
interpretation, tested by the standard
of the reasonably intelligent, reasonably
well trained, and reasonably prudent
police officer under all the circum-
stances.
The conclusion that a reasonable
mistake of law does not offend the Fourth
Amendment finds support in Hill v.
California (1971) 4N1 U.S. 797. In
Hill, this Court upheld a California
Supreme Court ruling that "“[w]hen the
police have probable cause to arrest one
party, and when they reasonably mistake
a second party tor the first party,
then the arrest of the second party is
a valid arrest." (See People v. Hill
(1968) 69 Cal.2d 550, 553.)
Although the Hill cases, and
others dealing with this subject (see
Witkin, Cal. Evidence (2d Ed. 1966)
66.
§ 113, pp. 112-113), involve mistakes of
fact, this Court has observed that
Fourth Amendment standards for arrests
and searches are to be "judged in accord-
ance with ‘the factual and practical
considerations of everyday life on
which reasonable and prudent men, not
legal technicians act," Brinegar v.
United States, 338 U.S. 160, 175...
(1949) . « « « “™ (401 U.S. at pp. 804-
805.) (Emphasis added.)
In Elder v. Bd. of Medical
Examiners (1966) 241 Cal.App.2d 246,
a nurse was arrested for prescribing
drugs without a certificate, in viola-
tion of Business and Professions Code
section 2141. Incident to the arrest,
the records of the doctor for whom she
worked were searched, resulting in the
revocation of his license to practice
67.
medicine. In an administrative manda-
mus proceeding, the superior court
ordered the revocation vacated on the
ground that the nurse's arrest was
illegal, hence the search was invalid.
The Court of Appeal reversed, noting
that although another section of the
code, section 4229, "was subject to the
construction [which was followed by the
municipal court in the action against
the nurse] that since petitioner could
have originally authorized a refill,
and since, if present, he could have
orally authorized a refill, it was
proper for the nurse to orally authorize
a refill pursuant to the instructions
given her before his departure. Never-
theless, there was no precedent so
construing the statutes, nor does it
appear that the authorities knew or had
68.
reason to believe that all of the
dangerous drugs furnished by authoriza-
tion of the nurse were for refilled
prescriptions. (See Randle v.
California State Board of Pharmacy
(1966) 240 Cal.App.2d 254, 258-260
[49 Cal. Rptr. 485]. [PP] On the record,
therefore, there is nothing to sustain
any implication from the trial court's
finding that the filing of the complaint
and the issuance and execution of a
warrant against the nurse was other than
bona fide. The arrest being valid the
search attendant thereto was lawful.”
(241 Cal.App.2d at p. 263.) (Emphasis
added.) Since the court's discussion of
mistake of fact (whether the drugs fur-
nished by the nurse were for refilled
prescriptions) depends entirely upon a
prior mistake of law (the scope of
69.
§ 4229), the Elder case undeniably
stands for the proposition that an
arrest can be valid despite a good
Faith mistake of law. The court implied-
ly found the mistake reasonable on the
ground that “there was no precedent so
construing the statutes."
Similarly in People v. Superior
Court (York) (1970) 3 Cal.App.3d 648
the court held that under the Fourth
Amendment an officer's reasonable good
faith belief that a landlord has the
authority to consent to the search of a
tenant's room is sufficient and that the
officer need not file a quiet title
action to be sure the landlord has the
legal right to consent to such a
search.
Drawing a distinction in the search
and seizure area between mistakes of
70.
fact and mistakes of law would not be
warranted. Clearly, an officer's mis-
take of fact is just as instrusive on
privacy rights as his mistake of law.
Regardless of whether an officer makes
a mistake of law or fact, the Fourth
Amendment is not threatened where the
officer acts in subjective good faith
and where his good faith is objectively
reasonable. The ability of the courts
to ultimately judge the veandnabtenese
of a given mistake of law is sufficient
guarantee that willful, or even foolish
(hence not reasonable) mistakes of law
will not validate otherwise invalid
searches, detentions, and arrests.
Respondent therefore submits that
even if Officer Rocha was mistaken in
his belief that the local ordinance had
been violated, his initial detention
71.
and subsequent search of the car in
which respondent was riding were never-
theless reasonable and lawful.
72.
IV
THE MAJORITY OPINION IS CONTRARY
TO PRECEDENT IN FINDING THAT
THE VICTIM'S IN-COURT IDENTIFI-
CATION WAS OBTAINED BY EXPLOITA-
TION OF THE ALLEGEDLY ILLEGAL
DETENTION
In addition to suppressing the
physical evidence found in respondent's
car, the majority opinion also holds
that the victim's in-court identifica-
tion must be suppressed as an exploita-
tion of the allegedly unlawful detention.
It is petitioner's contention that the
majority opinion misstates the factual
record in this case in arriving at this
decision as well as ignoring well-
established precedent.
There is direct support for this
contention in the recent case of
United States v. Crews (1980)
U.S. 7] S.Ct. ’
L. Ed. .
73.
In Crews, this Court held that an
in-court identification need not be
suppressed as the fruit of an unlawful
arrest where the police's knowledge of
the suspect's identity and the victim's
independent recollections of him both
antedate the unlawful arrest and were
thus untainted by the constitutional
violation.
Crews involved a situation where
a victim notified the police after a
robbery and gave them a full descrip-
tion of her assailant. Several days
later, Crews, who matched the suspect's
description, was seen by the police
around the scene of the crime. After
the police made an unsuccessful attempt
to photograph him, Crews was taken into
custody, ostensibly as a suspected
truant from school, and was detained at
74.
police headquarters, where he was
briefly questioned, photographed, and
then released. Thereafter, the victim
identified his photograph as that of her
assailant. Crews was again taken into
custody and at a court-ordered lineup
was identified by the victim. He was
then indicted for armed robbery and
other offenses. Crews made a pretrial
motion to suppress all identification
testimony and the trial court found his
initial detention at the police station
constituted an arrest without probable
cause and accordingly ruled that the
products of that arrest--the photo-
graphic and lineup identifications--
coulc not be introduced at trial, but
further held ‘hae the victim's ability
to identify him in court was based upon
independent recollection untainted by
75.
the intervening identifications and
that therefore such testimony was
admissible. At trial, the victim once
more identified Crews as her assailant.
He was convicted of armed robbery but
the Ristrict of Columbia Court of
Appeals reversed, holding that the in-
court identification testimony should
have been excluded as a product of the
violation of respondent's Fourth
Amendment rights.
In reversing the Appellate Court,
this Court affirmed the conviction on
the ground that the victim's in-court
identification was not obtained as an
exploitation of the illegal arrest
because the victim's identity was not
discovered or her cooperation secured
as a result of the arrest, nor did the
arrest infect the victim's ability to
76.
give accurate identification testimony.
The facts in the instant case are
closely analogous to those in Crews.
For example, the Woodland Police
knew of the robbery; they knew of
Mr. Cady's ability to identify the
robbers and their car; and they knew of
the victim's whereabouts. They knew
all of this before Officer Rocha of
the Dixon Police Department stopped the
car in which respondent was riding.
Furthermore, Officer Rocha was not
aware of the 7-11 robbery when he
stopped the car in which respondent was
riding.
Finally, the alleyedly illegal
stop of the car was made as part of
Officer Rocha's investigation into the
suspected curfew violation which was a
totally unrelated crime to the robbery.
77.
Officer Rocha's subsequent search was
not directed to discovering any wit-
nesses or loot from the 7-11 robbery.
Thus, in the instant case the pri-
mary illegality, if any, was Officer
Rocha's initial stop of Teresinski's
car for a curfew violation. However,
when he stopped Teresinski's car,
Officer Rocha knew nothing of the
Woodland robbery. It was pure happen-
stance that Officer Rocha later dis-
covered evidence which caused him to
believe that respondent had been
involved in a crime other than a mere
curfew violation or having an open
container in the car. It was only
after Officer Rocha found a pistol and
a sack full of money in Teresinski's
car that he even suspected that respon-
dent had been involved in a crime
78.
other than the one for which he had
been stopped.
Even at this point, however,
Officer Rocha still did not know any-
thing about the Woodland robbery but
instead merely suspected that respon-
dent had been involved in some robbery
because of the gun and the money in the
car.
The instant case does, contrary to
the majority's determination, involve
independent agencies investigating
different crimes. Here, the Woodland
police were investigating a robbery
while Officer Rocha of the Dixon Police
Nepartment was investigating a curfew
violation. The instant case also in-
volves the fortuitous discovery of
evidence implicating respondent in the
commission of a crime totally unrelated
79.
to the offense for which Officer Rocha
initially detained him.
Thus, there is nothing about Mr.
Cady's ability to identify respondent
in court as one of the robbers which
exploits the illegality of Officer
Rocha's temporary detention since these
events have no relationship to one
another.
However, it is true that the police
would not have learned respondent's
name, but for Officer Rocha's initial
illegal detention.
The mere fact that police learned
respondent's name as a result of
Officer Rocha's initial detention is
of little legal moment.
Thus, in People v. Fitzgerald
(1972) 29 Cal.App.2d 296, the Los Angeles
Sheriff's Office had obtained a warrant
80.
for Fitzgerald's arrest on murder
charges on October 8, 1969. One day
later, the city police arrested
Fitzgerald on an unrelated charge but
Fitzgerald told the police his name was
Joe Burton. After his arrest, the
police learned of his true identity
through fingerprints and he was then
booked on the murder charge by the
sheriff's office. Fitzgerald claimed
that the fingerprints taken by the
police which revealed his true identity
were the tainted fruit of an illegal
arrest and should have been suppressed.
The court held that even if the
defendant had been unlawfully arrested
by the police, there was no exploita-
tion of any illegal activity since the
sheriff's office could lawfully arrest
and book Mr. Fitzgerald once his true
8l.
identity became known. It is important
to note that in this situation,
Fitzgerald's true identity would not
have come to the attention of the
sheriff's office "but for" the unlaw-
fully obtained fingerprint evidence.
The court nevertheless held that there
was no requirement that the identifica-
tion evidence be suppressed even if the
sheriff's office had learned of it as
a result of an unlawful arrest.
The fact that the police happened
to learn of respondent's possible in-
volvement in a crime other than that
for which Officer Rocha initially
stopped him is the sailient fact which
brings the instant case within the
so-called NcInnis-Lockridge2’ rule.
6 cigs te Bop cert ae f0s UL. 1961;
Lockridge v. Superior Court (1970)
3 Cal.3d 166.
82.
The fact that the police would not
have been able to make this connection
but for the initial illegal detention
is immaterial.
As the court noted in People Ve
Griffin (1976) 59 Cal.App.3d 532, the
purposes of the exclusionary rule will
be adequately served by the suppression
of the physical evidence found in
Teresinski's car.
Griffin, supra, involved the
prosecution for an armed robbery which
occurred on April 21 in El Segundo,
California. Six weeks later Los Angeles
City Police Officers arrested the defen-
dant for possession of drugs and seized
a number of barbiturates which were
later identified as having been taken
from the El Segundo robbery.
On May 8 the Los Angeles Police
83.
informed El Segundo Police of the
arrest and sent them defendant's "mug"
shots.
The mug shot taken as a result of
this illegal arrest was later identified
by one of the victims of the earlier
robbery.
At the 1538.5 hearing in Griffin,
the People conceded that the entry,
search and seizure of the controlled
substances and defendant's arrest were
unlawful. However, in addition to
suppressing the narcotics, the trial
court also suppressed all identifica-
tion testimony by any and all witnesses
resulting from the illegal arrest.
The Appellate Court reversed the
trial court's order suppressing the
identification testimony.
The factors which led the Appellate
84.
Court to apply the happenstance rule in
Griffin were:
(1) The El Segundo Police knew of
the robbery and knew the identity and
whereabouts of the witnesses to that
robbery before Los Angeles Police
arrested Griffin.
(2) The Los Angeles Police were
unaware of the El Segundo robbery
when they arrested Griffin.
(3) The illegal search and seizure
were made as part of an investigation
into an unrelated crime and the
search was not directed toward the
discovery of any witnesses or loot
from the El Segundo robbery.
It has already been shown that each
of the factors present in Griffin are
present here.
Furthermore, it is also a well-
85.
established rule that an illegal
search or arrest in the investigation
of an offense does not bar subsequent
prosecution on that offense which
utilizes lawfully obtained evidence.
In the instant case this means that the
police are not required to ignore for-
ever the fact that Mr. Cady can identify
respondent as one of the people who
robbed him simply because they came by
this knowledge as a result of an unlaw-
ful detention. (Fogg v. Superior
Court (1971) 21 Cal.App.3d 1; see also
Davis v. Mississippi (1968) 394 U.S.
721, 730 (Stewart, J. dissenting.)
Neither respondent's name, his mug
shot, the officers’ observations of
respondent's appearance, nor their con-
clusions that he matched the description
of one of the suspects are of any
86.
independent evidentiary value in the
instant case. (People v. Kanos
(1969) 70 Cal.2d 381, 386.) Here, it
is Mr. Cady's ability to identify
respondent which is of evidentiary value.
A defendant's rights are not vio-
lated by requiring him to be present
in court where his appearance may be
observed by witnesses. It is also
questionable whether a person has a
reasonable expectation of privacy in
their appearance, especially when their
facial features are easily and continu-
ously observed by the public.
Petitioner submits that the
California Supreme Court's decision
that Mr. Cady's in-court identification
must be suppressed as an exploitation
of the allegedly illegal detention lacks
both factual and legal support and the
87.
trial court's order must therefore
be reversed.
88.
V
NO RECOGNIZED PURPOSE OF THE
EXCLUSIONARY RULE WOULD BE
SERVED BY EXCLUSION OF THE
PHYSICAL AND/OR IDENTIFICA-
TION EVIDENCE
It appears from the foregoing that
the temporary detention of respondent
was made with probable cause and in
good faith. Thus, if the stop is de-
clared unconstitutional we are con-
fronted with a legal anomaly: A
temporary detention which is entirely
reasonable but technically unlawful,
because of a reasonable mistake of law.
But "a search not expressly authorized
by state law [may] be justified as a
constitutionally reasonable one."
(Cooper v. California (1967) 386
U.S. 58, 61.) We must now inquire
whether an officer's good faith and
reasonable mistake of law compels the
89.
application of the exclusionary rule
to the evidence found in respondent's
car.
The exclusionary rule has been jus-
tified on three grounds. (See Note,
The Fourth Amendment Exclusionary Rule:
Past, Present, No Future (1975) 12
Amer.Crim.L.Rev. 507, 508-512.) First,
to vindicate his right to privacy, the
accused had a personal constitutional
right to exclude evidence obtained as a
result of unlawful searches and seizures
directed against him. (See Mapp v.
Ohio, supra, 367 U.S. 643, 655-656;
Weeks v. United States, supra, 232
U.S. 383, 392-394; Schrock and Welsh,
Up From Calandra: The Exclusionary
Rule as a Constitutional Requirement
(1974) 59 Minn.L.Rev. 251.)
Second, exclusion of unlawfully
90.
seized evidence is necessary to deter
police misconduct. (Brown v. Illinois
(1975) 422 U.S. 590; United States v.
Peltier (1975) 422 U.S. 531; Michigan
v. Tucker (1974) 417 U.S. 433, 446;
United States v. Calandra (1974)
414 U.S. 338, 347; Bivens v. Six
Unknown Federal Narcotics Agents (1971)
403 U.S. 388, 413-415 (Burger, Code,
dissenting); Kaufman v. United States
(1969) 394 U.S. 217, 238 (Black, J.,
dissenting); Desist v. United States
(1969) 394 U.S. 244, 249-250, 251;
Linkletter v. Walker (1965) 381 U.S.
618, 636-637; Mapp v. Ohio, supra,
367 U.S. at 656; Elkins v. United
States (1960) 364 U.S. 206, 217;
People v. Cahan (1955) 44 Cal.2d
434, 448; Oaks Studying the Exclusionary
Rule in Search and Seizure (1970)
364 U.S. 2364 U.S. 206, 2173
People v. Cahan (1955) 44 Cal.2d 434
448; Oaks Studying the Exclusionary
Rule in Search and Seizure (1970)
91.
37 U.Chi.L.Rev. 665, 668-671 [herein-
after cited as Oaks].)
Third, exclusion of unlawfully
seized evidence has been deemed neces-
Sary to preserve the judicial integrity
of the court before which the defendant
is being tried. (E.g., Lee v.
Florida (1968) 392 U.S. 378, 385;
Terry v. Ohio, supra, 392 U.S. l,
12; Elkins v. United States, supra,
364 U.S. at 222; Olmstead v. United
States (1928) 277 U.S. 438, 470,
484-485 (Holmes and Brandeis, J.J.,
dissenting); see generally Note,
Judicial Integrity and Judicial Review:
An Argument for Expanding the Scope
of the Exclusionary rule (1973)
20 U.C.Le-A. LeRev. 1229.)
This Court has repudiated the per-
sonal right theory. "The purpose of the
92.
exclusionary rule is not to redress
the injury to the privacy of the search
victim: ‘'[T]he ruptured privacy of the
victims’ homes and effects cannot be
restored. Reparation comes too late.'
Linkletter v. Walker (1965) 381
U.S. 618, 637." (United States v.
Calandra, supra, 414 U.S. at 347,
accord, United States v. Peltier,
supra.) It remains to be considered
whether the purposes of deterrence or
judicial integrity would be served by
the exclusion of evidence in this case.
Before applying the exclusionary
rule, a remedial device not expressly
mentioned in the Fourth Amendment, this
Court--or any court--must balance its
costs against its benefits. (See
United States v. Calandra, supra,
414 U.S. at 348-351; Kaplan, The
93.
Limits of the Exclusionary Rule (1974)
26 Stan.L.Rev. 1027, 1032-1035.)
Typically the competing interests are
the value to society of deterring future
police misconduct and the cost of free-
ing without punishment a defendant
whose guilt can be proven by the sup-
pressed evidence. (Note, 20 U.C.L.A.
L.Rev., Supra, at p. 1149.) When the
cost is greater than the benefit, the
evidence is not excluded (United
States v. Calandra, supra.) It
is therefore necessary to assess the
deterrent effect of the exclusion of
the evidence in this case. “Before we
penalize police error, therefore, we
must consider whether the sanction
serves a valid and useful purpose."
(Michigan v. Tucker, supra, 417
U.S. 433, 446.)
94.
"The deterrent purpose of the
exclusionary rule necessarily assumes
that the police have engaged in willful,
Or at the very least negligent, conduct
which has deprived the defendant of
some right. .« . . Where the official
action was pursued in complete good
faith, however, the deterrence ration-
ale loses much of its force." (Id.
at 447; accord, Brown v. Illinois,
Supra, 422 U.S. at 612 (Powell, J.,
concurring); United States v.
Peltier, supra, 422 U.S. at 537-539.)
Petitioner submits that United
States v. Peltier, supra, provides
compelling authority for the proposi-
tion that the deterrence rationale
could not possibly be served in this
case. In Peltier, government agents
had conducted a species of search
95.
subsequently condemned by this Court
in Almeida-Sanchez should apply to
searches conducted before the decision
in that case. Holding that no useful
purpose could be served by a retroac~
tive application of Almeida-Sanchez,
this Court made the following observa~
tions which are virtually controlling
in the case at hand:
"Tt was in reliance upon a validly
enacted statute, supported by long-
standing administrative regulations
and continuous judicial approval,
that border patrol agents stopped
and searched respondent's automobile.
Since the parties acknowledge that
Almeida-Sanchez was the first
roving border patrol case to be
decided by this Court, unless we
are to hold that parties may not
96.
reasonably rely upon any legal
pronouncement emanating from sources
other than this Court, we cannot
regard as blameworthy those parties
who conform their conduct to the
prevailing statutory or constitu-
tional norm. [Citations omitted.]
If the purpose of the exclusionary
Rule is to deter unlawful police
conduct, then evidence obtained
from a search should be suppressed
only if it can be said that the
law enforcement officer had know-
ledge, or may properly be charged
with knowledge, that the search
was unconstitutional under the
Fourth Amendment. Admittedly this
uniform treatment of roving border
patrol searches by the federal
judiciary was overturned by this
97.
Court's decision in Almeida-
Sanchez. But in light of this
history and of what we perceive to
be the purpose of the exclusionary
rule, we conclude that nothing in
the Fourth Amendment, or in the
exclusionary rule fashioned to
implement it, requires that the
evidence here be suppressed, even
if we assume that respondent's
Fourth Amendment rights were
violated by the search of his car."
(422 U.S. at 541-543; emphasis
added; footnotes omitted.)
It should also be noted that the
Dixon curfew ordinance has been judi-
cially approved, as the statute had
been in Almeida-Sahcnez. Officer
Rocha's reasonable and goodfaith
reliance upon his understanding of the
98.
Dixon ordinance totally undermines
any attempt to rationalize the suppres-
sion of evidence on the grounds of
deterrence. "Police conduct authorized
by a statute which may be unconstitu-
tional, will not be deterred...
because the police cannot foresee which
of the statutes that govern their con-
duct will be invalidated in the future."
(Note, 47 N.Y.U.L.Rev., Supra, at
p.- 604.) Therefore, deterrence of
future unlawful police conduct, the
exclusionary rule's "prime purpose"
(United States v. Calandra, supra,
414 U.S. at p. 347), will not be served
by suppression in this case.
Justice Powell has described an
arrest under a statute subsequently
declared unconstitutional as a mere
"technical" violation of the Fourth
99.
Amendment. In such a situation, “the
deterrence rationale of the exclusionary
rule does not obtain, and I can see no
legitimate justification for depriving
the prosecution of reliable and proba-
tive evidence." (Brown v. Illinois,
Supra, 422 U.S. at 612 (concurring
opinion).) Just as an officer who has
made a reasonable mistake of fact
should not be penalized by the applica-
tion of the exclusionary rule (Hill v.
California, supra, 401 U.S. 797,
804), so also should he not be penalized
when he has reasonably but mistakenly
relied on his understanding of the law
under which he has made an arrest.
Ideally, police should be encour-
aged to rely on the coordinate branches
of government whenever possible while
"engaged in the often competitive
100.
enterprise of ferreting out crime."
(Johnson v. United States, supra,
333 U.S. 10, 14.) Typically, police are
asked to rely upon the assessment of the
judiciary in determining whether prob-
able cause exists to conduct a search.
(E.ge, United States v. Ventresca
(1965) 380 U.S. 102.) In this case the
officer relied upon the declared valid-
ity of the legislative determination
that the facts which he perceived
amounted to an offense against society.
(In re Nancy C., Supra, 28 Cal.App.
3d 747.) Suppression of evidence seized
under authority of a warrant later in-
validated will not deter police miscon-
duct (cf. Brown v. Illinois, supra,
422 U.S. 590 [Powell, J., concuriing] );
the same must be said of temporary deten-
tion based on an officer's good faith
101.
mistake of law, and for the same
reason. The officer's reasonable and
good faith mistake of law is not mis-
conduct. Indeed, to the extent that
the purposeless suppression of evidence
causes confusion among the police it
discourages such reliance, and the
exclusionary rule therefore has a nega-
tive impact upon law enforcement and
civil liberties.
The final rationale for the exclu-
Ssionary rule is the "imperative of
judicial integrity." Many things may be
said about this nebulous concept, few
of them favorable. It is inconsistent
with other Fourth Amendment precedents
in several respects. First, a defendant
illegally arrested--even kidnapped--may
be validly convicted despite the unlaw-
ful nature of his seizure. (Gerstein
ve Pugh (1975) 420 U.S. 103, 119;
Frisbie v. Collins (1952) 342 U.S. 519;
102.
Oaks, Supra, at 669.)
Second, evidence seized unlawfully
by private citizens is admissible in a
criminal trial. (Burdeau v. McDowell
(1921) 256 U.S. 465.) Third, illegally
obtained evidence may be used to im-
peach a witness, including the defendant.
(Walder v. United States (1954)
347 U.S. 62; cf. Harris v. New York
(1971) 401 U.S. 222.) Fourth, and
fifth, both the doctrines of "attenua-
tion" (Wong Sun v. United States
(1963) 371 U.S. 471, 487-488) and harm-
less error (Chapman v. California
(1967) 386 U.S. 18) are applicable to
illegally seized evidence. For other
examples where illegally seized evidence
may be used in court without violating
the concept of judicial integrity see
In re Martinez (1970) 1 Cal.3d 641,
103.
650; People v. Hayko (1970) 7 Cal.
App.3d 604, 610; People v. Rafter
(1974) 41 Cal.App.3d 537, 560-561;
In re Christopher S. (1978) 80 Cal.
App.3d 903.
Thus, a court may permit its
integrity to be compromised as long as
it does not prejudice the defendant,
thus confusing his rights with its
Obligations. (See Kaplan, 26 Stan.L.
kev., Supra, at 1030.) Finally, even
this Court's decision to hold prospec-
tive in application the cases of Mapp
v. Ohio, supra, 367 U.S. 643 and
Linkletter v. Walker, supra, 381
U.S. 618 "in effect, ratified police
violations of the Fourth Amendment
occurring after that amendment was made
applicable to the states through the
Fourteenth Amendment [in Wolfe v.
104.
Colorado]." (Note, 12 Amer.Crim.L.
Rev., supra, at 514.)
Not only have the exceptions under-
mined the rule, but the concept itself,
which has never been invoked by the
Inited States Supreme Court as the sole
justification to suppress evidence
(Oaks, Supra, at p. 669), rests
upon a questionable view of the judicial
process and ite responsibility to
society. "The weakness of the judicial
integrity argument is that it asks us
to be guided by what seems like judicial
squeamishness; or, failing that, it
asks us to engage in speculation about
the remote consequences of judicial com-
plicity in lawless governmental action."
(Schrock and Welsh, 59 Minn.L.Rev., at
p. 265.) Viewed as an end in itself,
judicial integrity permits a court to
105.
protect its purity by suppressing truth
and permitting a guilty defendant to go
free. "Is not the court which excludes
evidence in order to avoid condoning the
acts of the officer by the same token
condoning the illegal acts of the defen-
dant?" (Barrett, Exclusion of Evidence
Obtained by Illegal Searches--A Comment
on People v. Cahan (1955) 43 Cal.L.Rev.
565, 582.)
If suppression of illegally seized
evidence is seen as a method of teaching
by example (Olmstead v. United States,
supra, 277 U.S. 438, [Brandeis, J., dis-
senting]) or of "minimizing the risk
of seriously undermining popular trust
in government" (United States v.
Calandra, supra, 414 U.S. at 357
[Brennan, J., dissenting]), then the
justification for judicial integrity is
106.
speculative. "If proponents of the
exclusionary rule say judicial lawless-
ness is a societal menace, the rejoinder
is, why not risk that menace rather than
the far worse danger of lawlessness in
the street?" (Schrock and Welsh, 59
Minn.L.Rev., Supra, at 266.)
A more fundamental objection to the
doctrine than its dubious premises is
its questionable legal foundation.
Petitioner has searched the Constitution
in vain for the provision which entitles
this Court to instruct all other tri-
bunals to defend their integrity by
excluding relevant evidence. Of course,
this Court, like the United States
Supreme Court, has inherent supervisory
power to direct its lower courts to
abstain from participating in the "dirty
business" of police misconduct. (Cf.
107.
McNabb v. United States (1943) 318
U.S. 332; see generally Hill, The Bill
of Rights and The Supervisory Power
(1969) 69 Colum.L.Rev. 181, 193-199.)
Indeed, in McNabb, one of the earliest
cases to invoke the supervisory power,
the court stated that "a conviction
resting on evidence secured through such
a flayrant disregard of the procedure
which Congress has commanded cannot be
allowed to stand without making the
courts themselves accomplices in will-
full disobedience." (318 U.S. at 345,
emphasis added.) It is significant that
the italicized language, having the ring
associated with the invocation of the
doctrine of judicial integrity, is found
in a decision which is so closely iden-
tified with the concept of supervisory
power.
108.
There is also reason to question
the continuing validity of the "judicial
integrity" doctrine as a ground for
suppressing evidence. Thus, the dis-
senters in Calandra feared that "the
Court today discounts to the point of
extinction the vital function of the rule
that the judiciary avoid even the slight-
est appearance of sanctioning illegal
government conduct." (414 U.S. at 360.)
The majority's implicit premise that
deterrence and judicial integrity are
inextricably intertwined (Id. at 356,
n. 11) was expressly stated in Michigan
v. Tucker, supra, 417 U.S. 433, 450,
n. 25: “This ratione [of judicial inte-
grity), however, is really an assimila-
tion of the more specific rationales
discussed in the text of this opinion,
and does not in their absence provide
109.
an independent basis for excluding
challenged evidence." Thus, judicial
integrity has been subsumed in the more
plausible rationale of deterrence.
Despite references to judicial integrity
by the majority in Peltier, supra,
422 U.S. at 537, and the hopeful endorse-
ment by the dissenters (Id. at 533,
ne 13), it should now be clear that the
only viable purpose of the exclusionary
rule is to deter unlawful police conduct.
To the extent that the imperative
of judicial integrity is viable at all,
Peltier makes it clear that it does not
compel suppression of evidence in this
case. Theat xationale “is also not
offended if law enforcement officials
reasonably believed in good faith that
their conduct was in accordance with the
law even if decisions subsequent to the
110.
search and seizure have held that the
conduct of the type engaged in by law
enforcement officials is not permitted
by the Constitution." (Id. at 539.)
It must also be noted that the
imperative of judicial integrity is more
than adequately protected in cases
where the officer has made a reasonable
mic”ake of law, in that a full judicial
hearing must be conducted on this issue
before such a finding can be made.
Thus, the courts are afforded an
opportunity of protecting their own
integrity.
Petitioner therefore submits that
given the good faith and reasonable re-
liance by Officer Rocha upon the declared
validity of the Dixon curfew ordinance,
it is manifest that judicial integrity
would not be offended by the admission of
the fruits of the search into evidence.
CONCLUSION
For the foregoing reasons, it is
respectfully requested that the instant
application for writ of certiorari be
granted.
Respectfully submitted,
GEORGE DEUKMEJIAN
Attorney General
ROBERT H. PHILIBOSIAN
Chief Assistant Attorney General
Criminal Division
ARNOLD O. OVEROYE
Assistant Attorney General
WILLARD F. JONES
Deputy Attorney General
WM. GEORGE PRAHL
Deputy Attorney General
Attorneys for Respondent
WGP: dh/rj
77PA0008
6-5-80
112.
APPENDIX A
—— eee
COPY
IN THE SUPREME COURT OF THE STATE OF
CALIFORNIA
THE PEOPLE,
)
)
Plaintiff and )
Appellant, )
)
)
)
Ve Crim. 20497
ROBERT JOSEPH ) Super. Ct.
TERESINSKI, No. 5749
)
)
Defendant and )
Respondent. )
)
The People appeal from an order
dismissing charges of robbery. The
dismissal follows an earlier order sup-
pressing evidence obtained as a result
of the search of defendant's car.
As we shall explain, a police
officer, lacking an objectively reason-
able basis for suspecting criminal
activity, detained defendant's car.
Consequently that detention violates
l.
the Fourth Amendment, and both physical
evidence of the robbery found in the car
and identification testimony procured
by exploitation of the illegal detention
cannot be admitted into evidence. Be-
cause no admissible evidence remained to
link defendant to the robbery, we affirm
the trial court's order dismissing the
charges.
About 2 a.em., Officer Rocha of the
Dixon police force saw an unfamiliar car
with three occupants proceeding through
the city business district. Because of
windshield glare he could not see defen-
dant, the driver, but he thought both
passengers were juveniles and surmised
that the driver also was a minor. Al-
though the car was proceeding at a law-
ful speed without any suspicious beha-
vior, the officer signaled the driver to
2.
stop. He subsequently explained that
he detained the car because "I believed
they were juveniles in the car. We
have a 10:00 o'clock curfew in Dixon."
As the car slowed to a stop Officer
Rocha observed defendant and the front-
seat passenger glance back and reach
down. Those gestures led him to believe
that the occupants might be hiding
alcohol or reaching for a weapon. De-
fendant alighted from the car, walked
toward the police vehicle, and presented
his driver's license. The license veri-
fied defendant's adult status, and in
fact only one occupant of the car was a
juvenile.
Rocha told defendant to stay at the
rear of the car, walked to the driver's
window, and shined his light on the
floorboard. He saw a pool of liquid
3.
and a beer can under the front seat.
Ordering the two passengers out, he then
observed a gun holster; and, after ques-
tioning, Rocha retrieved a loaded weapon
from the £llorboard.2/
A subsequent search of the car pro-
duced several beer containers, a baggle
of marijuana, and a paper bag filled
with bills and change. The money was
traced to a Seven-Eleven store that had
been robbed earlier that night in nearby
Woodland. Defendant and his two passen-
gers were arrested on suspicion of
robbery. Mr. Cady, the store clerk who
witnessed the robbery, identified photo-
graphs of defendant and his companions.
1/ The issues in this case con-
cern the legality of the initial deten-
tion. The scope of the search has not
been questioned. (Cf. People v.
Superior Court (1970) 3 Cal.3d 807.)
4.
Later at the preliminary hearing Cady
identified defendant in person.
The trial court ruled that the de-
tention was illegal and granted a motion
to suppress, as the fruits of an illegal
detention, the physical evidence found
in the car, the photographic identifica-
tion, and the subsequent courtroom iden-
tification. Since there remained no
evidence linking defendant with the
robbery, he ordered the charges dis-
missed; the People appealed.
We recently defined the constitu-
tional standard for measuring the valid-
ity of a detention. [In In re Tony C.
(1978) 21 Cal.3d 888, 893, we stated:
"to justify an investigative stop or
detention the circumstances known or
apparent to the officer must include
specific and articulable facts causing
5
him to suspect that (1) some activity
relating to crime has taken place or is
occurring or about to occur, and (1)
the person he intends to stop or detain
is involved in that activity. Not only
must he subjectively entertain such a
suspicion, but it must be objectively
reasonable for him to do so: the facts
must be such as would cause any reason-
able police officer in a like position,
drawing when appropriate on his training
and experience [citation omitted], to
suspect the same criminal activity and
the same involvement by the person in
question."
We need only apply that standard to
the facts of the present case. The
detention here rested upon Officer
Rocha's suspicion that defendant and his
comrades were violating a city curfew
6.
ordinance.2/ Contrary to Officer
2/ The ordinance reads
"Sec. 16.2 Curfew -- Minors not
to be in public after 10:00 P.M.;
exceptions.
"It shall be unlawful for any person
under the age of eighteen years to
loiter, idle, wander, stroll, or play
in or upon the public streets, highways,
roads, alleys, parks, playgrounds, or
Other public grounds, public places and
public buildings, places of amusement
and eating places, vacant lots, or
other unsupervised places, between the
hours of 10:90 P.M. and 5:00 A.M. of the
day immediately following; provided,
however, that the provisions of this
section do not apply when the person is
accompanied by his parent, guardian, or
Other adult person having the care and
custody of the person, or when the per-
son is returning directly home from a
meeting, entertainment, recreational
activity or dance, or when the person
is going directly to or returning dir-
ectly from work.
"A person under eighteen years may
obtain food in a cafe after a meeting,
entertainment, recreational activity,
dance or work after the hour of 10:00
P.M., but must vacate the premises
immediately after consuming the food
served and proceed directly home."
(Ord. No. 6, 1950, § 1.) (continued)
7.
Rocha's statement, the ordinance does
not declare it a crime for minors to be
found in public after 10 p.m. It pro-
vides that it is unlawful for a minor
"to loiter, idle, wander, stroll, or
play in or upon the public streets" and
other public places between 10 p.m. and
5 aem. These terms cannot reasonably be
construed to encompass defendant's
conduct.
The word “loiter” in particular
bears a sinister connotation: it con-
notes lingering for the purpose of
Footnote 2 continued.
"Sec. 16.4 Curfew -- Minors under
eighteen violating curfew regulations.
"Any person under the age of eight-
een years violating the provisions of
section 16.2 shall be guilty of a
misdemeanor and shall be dealt with in
accordance with juvenile court law and
procedure. (Ord. No. 6, 1950, § 3.)"
8.
committing a crime. (In re Cregler (1961)
56 Cal.2d 308, 312.) As the court noted
in People v. Horton (1971) 14 Cal.App.3d
930, 933: “driving along city streets,
even at 1:15 in the morning, is not
‘loitering.'" Whether or not the terms
“idle, wander, stroll, or play,” when
used in a curfew ordinance, also carry
a sinister connotation, those terms are
equally inapplicable to the present
case. Conceivably one may "idle, wan-
der," or "play" in an automobile, but
merely driving along a street in a law-
ful manner cannot be so described.
In sum, Officer Rocha lacked any
objectively reasonable basis to suspect
that defendant or his passengers were
violating the prohibitory language of
the ordinance. Accordingly, his deten-
tion of defendant was unlawful under
9.
the standards established in In re
Tony C., supra, 21 Cal.3d 888, 893.
Although the People have conceded
before this court that defendant's con-
duct did not violate the curfew ordinance,
they nevertheless argue that the deten-
tion should be upheld on the ground that
the officer's action was based on a
"reasonable mistake of law." (Cf. Hill
v. California (1941) 401 U.S. 797 (mis-
take of fact); Elder v. Bd. of Medical
Examiners (1966) 241 Cal.App.2d 246.)
Courts on strong policy grounds have
generally refused to excuse a police
officer's mistake of law. (See, e@.ge,
People v. McKelvy (1972) 23 Cal.App.3d
1027, 1036-1037.) We need not decide,
however, whether under exceptional cir-
cumstances an officer's reasonable
mistake of law might validate police
10.
conduct because in this case the
officer's mistake cannot he found
reasonable.
The curfew ordinance did not pre-
sent an obscure or unfamiliar enactment
to Officer Rocha, but one that he had
enforced on numerous occasions. The
plain language of the ordinance eleariy
does not prohibit a minor from simply
being present on the streets of Dixon
after 10 p.m., but only prohibits such
behavior as "loitering" or "idling" on
the streets; the officer's belief that
Nixon had enacted a blanket curfew
ordinance should have been dispelled by
a simple reading of the terms of the
enactment. Moreover, several years
before the detention in the present
case, the Court of Appeal in construing
a similar ordinance explicitly held that
ll.
driving a car at a normal rate of speed
down a public street did not violate the
Ordinance. (People v. Horton, supra,
14 Cal.App.3d 930.) If we were to find
Officer Rocha's mistake of law reason- |
able under these circumstances, we
would provide a strong incentive to
police officers to remain ignorant of
the language of the laws that they en-
force and of the teachings of judicial
decisions whose principal function fre-
quently is to construe such laws and to
chart the proper limits of police con-
duct.
Finally, the Attorney General con-
tends that even though the illegality of
defendant's detention bars use of
physical evidence found in his car, the
lower court erred in suppressing the
Seven-Eleven clerk's identifications of
defendant as participant in the robbery.
12.
‘e
The Attorney General further argues
that the identifications alone estab-
lished probable cause and that the order
of dismissal therefore should be reversed.
The issue congeals into whether the
identification evidence was obtained by
"exploitation" of the illegal detention
"or instead by means sufficiently distin-
guishable to be purged of the primary
taint." (Wong Sun v. United States
(1963) 371 U.S. 471, 488.) In People
v. Sesslin (1968) 68 Cal.2d 418, 428,
we explained that "to remove the taint
from evidence obtained directly as a
result of unlawful police conduct re-
quires at least an intervening indepen-
dent act by the defendant or a third
party which breaks the casual chain link-
ing the illegality and evidence in such
a way that the evidence is not in fact
13.
obtained by ‘exploitation of that
illegality.'"
We find no intervening act in the
present case. The officer followed the
initial detention with a visual search
of the interior of defendant's car--a
search that was illegal hecause of the
illegality of the detention. That visual
search led to a more thorough search,
which turned up the proceeds of the
Seven-[Fleven robbery. Relying on that
evidence, which we have determined to
be the product of an illegal search,
the officer arrested defendant and his
companions for suspicion of robbery,
took them into custody, photographed
them, and sent the photographs to the
Woodland police. Cady identified the
photographs, and subsequently identified
defendant in person. All events
14.
followed in immediate, logical and
casual progression, without any inter-
vening act which could form a basis for
finding that the taint of the illegal
detention, search and seizure had been
so attenuated that it did not infect the
later icentification testimony.
The Attorney General relies on cases
which have permitted use of evidence
illegally obtained in investigation of
matters unrelated to the crime of which
defendant is charged. (See People v.
McInnis (1972) 6 Cal.3d 821; Lockridge
ve. Superior Court (1970) 3 Cal.3d 166;
People v. Griffin (1976) 59 Cal.App.3d
532.) In each of those cases the defen-
dant had been illegally arrested for an
unrelated crime, weeks or months after
the charged offense had been committed,
and a search or mug shot made in
15.
connection with the later unrelated
arrest served to link defendant to the
charged crime. The courts held the
evidence admissible on the theory that
it was not derived from exploitation of
the illegality.
In the present case, defendant was
arrested upon suspicion of the robbery
of which he is now charged. AS the trial
court explained "This is not a case of
independent agencies investigating
independent crimes, nor of one agency
investigating a crime and taking the
defendant's photograph and then forward-
ing the photograph to another agency
investigating a different crime. The
investigation by both agencies related to
the same robbery and the property taken
therein. The investigations were each
simultaneous and very closely related in
16.
time as well as subject." Under these
circumstances, we agree with the trial
court that the identification testimony
derived directly from exploitation of
the physical evidence discovered as a
result of the illegal detention.
The order of dismissal is affirmed.
TOBRINER, J.
WE CONCURSs
BIRD, C.Je
MOST, J.
NEWMAN, J.
17.
COPY
PEOPLE v. TERESINSKI
Crim. 20497
I dissent. I would reverse the
order of dismissal and direct the trial
court to deny the motion to suppress
evidence. In my opinion Officer Rocha
did not lack an objectively reasonable
basis for suspecting that defendant or
his passengers were violating the Dixon
curfew ordinance (§ 16.2, Dixon City
Code). Even if the detention were
unlawful, however, the Dixon police
officer's conduct does not taint nor
require the exclusion of the identifica-
tion testimony of Colin Cady, the victim
of the Woodland robbery, or the exclu-
sion of the photographs taken by the
vloodland police during defendant's book-
ing on the robbery charges.
1.
Circumstances short of probable
cause to make an arrest may justify an
officer stopping pedestrians or motorists
for questioning. (In re Tony C. (1978)
21 Cal.3d 888, 892; People v. Harris
(1975) 15 Cal.3d 384, 388-389; Cunha v.
Superior Court (1970) 2 Cal.3d 352, 355;
Irwin v. Superior Court (1969) 1 Cal.3d
423, 426-427; People v. Mickelson (1963)
59 Cal.2d 448, 450; People v. One 1969
Cadillac Coupe (1964) 62 Cal.2d 92, 95-
96.) As stated in Tony C., the appli-
cation of the rules is based on a deter-
mination of "'the reasonabneness in all
the circumstances of the particular
governmental invasion of a citizen's per-
sonal security’ (Terry v- Ohio [1968]
392 U.S. 1, 19)." (21 Cal.3d at p-
892; emphasis added.)
In the present case there was an
2.
abundance of objective facts that
justified Officer Rocha's honest and
strong belief that the occupants of the
vehicle might be in violation of the
curfew ordinance. (See In re Nancy C.
(1972) 28 Cal.App.3d 747.) He observed
a car he did not recognize, apparently
occupied by juveniles, driving between
2 and 3 aem. in the business district of
a relatively small town. Although he
knew that the curfew law contained a pro-
vision exempting juveniles traveling to
or from "some lawful business or place
Or dance," he had no way of determining.
whether the exception applied without
detaining and questioning the occupants
of the vehicle. In light of the strong
possibility that the exception did not
apply, such detention and questioning
was fully justified. In my opinion,
3.
there can be no question of "the reason-
ableness in all the circumstances of the
particular governmental invasion."
Even if Officer Rocha acted impro-
perly in detaining defendant and his
passengers in Dixon, however, only the
physical evidence taken from the vehicle
should be suppressed. There is no basis
whatever for also suppressing the robbery
victim's identification of defendant as
the person who, with two companions,
assaulted and robbed him in the 7-11
store in Woodland. That testimony of
the victim Cady was obtained by means
sufficiently distinguishable so as to be
purged of the primary taint of any ille-
gality that might possibly have inhered
in the initial detention. (Wong Sun v.
U.S. (1963) 371 U.S. 471, 487-488;
Lockridge v. Superior Court (1970)
4.
3 CA1.3d 166.) Moreover, since that
testimony at the preliminary hearing was
alone sufficient cause to hold defendant
to answer for robbery, the trial court
erred in dismissing the charges.
In ruling on the suppression motion,
the trial court appled a "but for" test
and suppressed not only the physical
items found in the car but also all
other evidence connecting defendant with
the Woodland robbery: "In the case at
bar, but for the illegal stop the property
of the defendants would not have been
seized, they would not have been
arrested, their pictures would not have
been taken, the witness Cady would not
have identified them by name from the
mug shots, they would not have been in
court and Cady would not have made an
in-court identification of them."
5.
A determination, however, that
the evidence would not have been ob-
tained "but for" an antecedent illegal
detention is only the start of the
inguiry. Not°"all evidence is ‘fruit of
the poisonous tree' simply because it
would not have come to light but for the
illegal actions of the police. Rather,
the more apt question in such a case is
‘whether, granting establishment of the
primary illegality, the evidence to
which instant objection is made has been
come at by exploitation of that ille-
gality or instead by means sufficiently
fistinguishable to be purged of the
primary taint." . . ." (Wong Sun,
supra, 371 U.S. at pp. 487-488.)
In Lockridge v. Superior Court,
supra, 3 Cal.3d 166, 170, after deter-
mining that the challenged evidence
6.
would not have been obtained "but for"
illeyal police conduct, this court
nevertheless concluded that the police
connection of defendant to the charged
robbery through the illegal discovery
of a gun was not sufficient to character-
ize the testimony of the victim of the
robbery as “come at by exploitation of
that illegality" (Wong Sun, supra,
371 U.S. at p. 488).
If the primary taint was purged in
Lockridge, a fortiori it was also
purged in this case. In Lockridge a
gun was recovered during an unlawful
search; the serial number of the gun led
the police to the file of an unsolved
robbery and to the victims of that rob-
bery which had taken place two and a
half years before; the victim identified
photographs of the defendants and, after
7.
robbery charges were filed, made a
courtroom identification of them at the
preliminary hearing. The trial court
suppressed the gun but allowed the
testimony of the witnesses.
There was no evidence in Lockridge
that without the lead supplied by the
gun the police investigation would have
connected the defendants with the robbery.
"Ie nevertheless refused to characterize
the victims' testimony as obtained by
exploitation of the illegal police con-
duct. “We reasoned that the victims were
already known to the police as victims of
the unsolved robbery; their gun was
found as the result of a search in the
course of an investigation of a totally
unrelated crime; that search was not
directed toward discovery of witnesses
such as the robbery victims and it did
8.
not lead to those victims as the
source of further evidence of the crime
the police were investigating when they
illegally obtained the robbery victims’
gun. ‘ve held that it was “pure happen-
stance" that during the investigation of
another crime the police came across the
gun taken in the robbery. We stated
that the purpose of the exclusionary
rule, to deter unlawful police conduct,
was adequately served by suppressing the
gun and the evidence of the other crimes
the police were investigating: "That
purpose would not he further advanced by
suppressing the testimony of the known
victims of the . . . robbery, testimony
that unquestionably would have been
admissible to establish petitioners'
guilt of that crime, but for the chance
disclosure of their connection therewith
9.
during a wholly unrelated police in-
vestigation."
This court applied the same prin-
ciples in People v. McInnis (1972)
6 Cal.3d 821 to permit the introduction
into evidence of "mug shots" taken after
an illeyal arrest and used to secure a
photographic identification of defendant
for a robbery unrelated to the arrest.
we held that the photographic identifi-
cation and the in-court testimony of
the robbery victims were not tainted by
the previous illegal arrest. In
“McInnis, as in the instant case, two
independent agencies were involved. As
Justice Mosk pointed out, "The fact
that a tenuous link was forged between
the illegal arrest and the robbery is
more clearly ‘pure happenstance’ in the
case at bar than in Lockridge." (6 Cal.
10.
3d at p. 825; see also People v.
Griffin (1976) 59 Cal.App.3d 532.)
The circumstances of the present
case are very similar to those of
Lockridge. It was "pure happenstance"
that in the course of the detention of
defendant and his passengers for inves-
tigation of the curfew violation the
Dixon police found the coins taken in
the 7-11 robbery in Woodland. Officer
Rocha was not looking for evidence of
the robbery when he detained defendant;
at that time Officer Rocha was unaware
of the Woodland robbery.
The trial court in the instant case
sought to distinguish Lockridge. The
court said: "This is not a case of
independent agencies investigating
independent crimes, nor of one agency
investigating a crime and taking the
ll.
_—
defendant's photograph and then for-
warding the photograph to another agency
investigating a different crime. The
investigation of both agencies related
to the same robbery and the property
taken therein. The investigations were
each simultaneous and very closely re-
lated in time as well as subject."
This analysis mischaracterizes the
record.
The Dixon and Woodland Police
Departments are independent agencies and
they were investigating independent
crimes, a possible curfew violation in
Dixon and a robbery in Woodland. How-
ever, that independent agencies were
involved is not the crucial factor;
neither is the time span controlling.
The thrust of Lockridge is that when
a crime or, more precisely, victims of
12.
crime become known to the police ab-
sent illegal conduct on their part and
thereafter the defendant's connection with
the crime is discovered by chance, the
victim-witnesses are not tainted by the
circumstances of the chance discovery.
An illustration of the tainting of
a victim-witness is provided by People
ve Huff (1978) 83 Cal.App.3d 549, where
the record failed to establish that the
police would have learned of the charged
burglary and defendant's connection with
it by means independent of a search
which followed an illegal arrest for an
unrelated robbery. Unbeknownst to the
store owner in Huff, defendant left
his shop with four suits. The owner
checked the slacks rack after defendant
left and satisfied himself that nothing
was missing. He discovered the loss of
13.
the four suits only after the police
telephoned him and he went to the police
department and was shown the four suits
bearing tags from his store. "It is a
matter of pure speculation whether Mr.
Crosetti [owner] would have discovered
his loss in the absence of the telephone
call from the police. Fven assuming
that he would have discovered the loss
at some point in time, it remained a
matter of speculation whether he would
have connected defendant with that loss
and whether he would have reported the
loss to the police." (83 Cal.App.3d
at p. 561.)
In the instant case, not only were
the Woodland police cognizant of the
7-11 robbery; within minutes of the
robbery they obtained the description
of the robbers From Cady, the victim;
14.
they also had the observations of a
passerby who observed three young men
leaving a car and entering the Woodland
store at about the time of the robbery.
The informant's description of the young
men conformed with that given by Cady
and the description of the vehicle con-
formed substantially with that of the
vehicle driven hy defendant. The in-
formation formed part of the bulletin
that issued from Woodland just minutes
after the Dixon stop and we cannot say,
as we did in Lockridge, that without
the lead supplied by the unlawful Dixon
detention the police would not have
connectea defendant to the robbery in
Woodland.
In any event, Lockridge is dis-
positive of the instant case insofar as
the admissibility of Cady's testimony
15.
is concerned. Likewise, ‘McInnis is
dispositive of the issue concerning the
admissibility of the photographs and
Cady's photographic identification of
defendant.
The photo taken by the Woodland
police is no more tainted by the unlaw-
ful detention than is Cady's testimonial
evidence; both the photo/photo identifi-
cation and the testimonial evidence
result from the "pure happenstance"
discovery of the defendant's connection
with the Moodland robbery and here, as
in Lockridge and “McInnis, the purpose
of the exclusionary rule would not be
served by suppressing either item of
evidence.
MANUPL, Je
wr CONCUR:s
CLAR', Te
16.
APPENDIX B
a
CLERK'S OFPICE, SUPRENE COURT
4250 State Ruilding
San Francisco, California 94192
March 29, 1980
I have this day Ciled Order
a ln cc a ae
oo 2 oe 8 ee OO eee Oe. Oe ew eee @eoeowean ne le ll
RPOUNARING DEMICD
ee en
Tr rez: Crim. Mo. 20497,
People v. Teresinski,
Respectfully,
GC. Ee RESREL
Clerk
APPENDIX C
IN THE
SUPREME COURT OF THE STATE OF
CALTFORNIA
Crim. No. 20497
THE PROPLE,
Plaintiff and Appeal
Appellant,
County Yolo
VS.
Superior Court
ROPERT JOSEPH No. 5749
TERCSINSHI,
Pefendant and
Respondent.
el
<_< eee eee
The above-entitled cause having been
heretofore fully argued, and submitted,
IT IS ORDERED, ANJUDGED, AND DECREED by
the Court that the ORDER OF DISMISSAI,
of the Superior Court of the County of
Yolo in the above-entitled cause, IS
hereby AFFIRMED.
I, . , Clerk of the
Supreme Court of the State of California,
l.
Jo hereby certify that the fore-
going is a true copy of an original
judgment entered in the above-entitled
cause on the llth day of FEBRUARY, 1980.
(Seal)
Witness my hand and the seal of
the Court, this 21st day of MARCH,
1980.
G. Tf. SCHNEIDER
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.